Deportation: Iran

The Lord Bishop of Ripon and Leeds: asked Her Majesty's Government:
	In what circumstances they are prepared to deport Christians to Iran.

Lord West of Spithead: My Lords, we recognise that Christians from Iran may demonstrate a need for international protection. Those with a well founded fear of persecution will be granted asylum. However, we will enforce the return of those individuals who we and the courts are satisfied are not at risk of persecution and have no legal right to remain in the United Kingdom. This is a key part of upholding our robust and fair asylum system.

The Lord Bishop of Ripon and Leeds: My Lords, I am grateful to the Minister for that response. Does he agree that it is vital for the United Kingdom to affirm that it is a basic human right to have or to adopt a religion of one's choice? What will the Government do to ensure that asylum tribunals take religious convictions more seriously in their deliberations?

Lord West of Spithead: My Lords, the right reverend Prelate the Bishop of Ripon and Leeds raises a very important point. We recognise that persons who actively display their faith in public may attract adverse attention from the Iranian authorities and we believe that they have an absolute right legally to show their faith publicly. However, we have not found—the COI Service looked into this—that there is systematic persecution of them all. Current case law from the Asylum and Immigration Tribunal concludes that an ordinary convert will not face persecution. The issue of Christian converts was closely considered again as a result of a hearing in May 2008. We will alter our guidance if necessary based on the awaited determination from that study and review.

Viscount Waverley: My Lords, what is the assessment of the lot of Jews from Isfahan? If it is adverse, how will that impact on policy?

Lord West of Spithead: My Lords, I will have to come back to the noble Viscount on that point. I am not aware of that one, but I will look at it and come back to him in writing, if I may.

Lord Anderson of Swansea: My Lords, in their region the Iranians are comparatively tolerant of "people of the book", be they Jews or Christians. The problem arises with apostates: those who convert to Christianity either in their own country or in the United Kingdom. The issue is therefore to test the genuineness of that conversion, because it is clear that there will be discrimination if converts are forced to return to Iran. Can my noble friend assure the House that those who take the decisions in the tribunals are given sophisticated briefing about the problems that are likely to confront converts if they are forced to return to Iran?

Lord West of Spithead: My Lords, my noble friend makes an important point. I confirm that the caseworkers are given clear guidance about the questions to ask and how they should look at this issue. He is absolutely right that those who have converted are possibly most at risk. That is also why we are waiting for this judgment to come out, but we have no evidence at the moment of anyone having been executed in Iran on the basis of conversion to the Christian religion.

Lord Avebury: My Lords, the majority of Iranian Christians are Armenians, who do not suffer persecution at all. It is mainly those who conduct their services in Farsi, such as the Protestants and, I believe, the Assyrian Christians, who are systematically discriminated against. Does the noble Lord not agree that a much larger problem is the systematic persecution of the Baha'is, all of whose leaders were recently arrested and are still being held incommunicado after six weeks in detention?

Lord West of Spithead: My Lords, I do not know the great detail of that, but I agree entirely. The fact that we review and are careful to ensure that anyone who is sent back will not be persecuted does not mean that we support all the policies that are carried out by the Iranian Government.

Baroness Hanham: My Lords, from whom does the department get its intelligence about persecution in Iran? How reliable is the source that tells us that some may not be persecuted but that others may and how can we be sure that the decisions that are then taken by the tribunals are totally reliable?

Lord West of Spithead: My Lords, the noble Baroness makes a good point. The Country of Origin Information Service—the COI Service—gathers together all the data, which are compiled from a wide range of sources, including the UN High Commissioner for Refugees, human rights organisations, NGOs, news, media and the Foreign and Commonwealth Office. The data are updated frequently and significant changes in country conditions are communicated quickly to decision-makers. It would be a little over the top if I said that we are absolutely sure all the time that every single bit of evidence is there, but we try to get all the evidence that there is. Indeed, after a debate on this issue in the past few months, we looked carefully at evidence from one noble Lord, which was extremely useful.

Lord Roberts of Llandudno: My Lords, time after time the Government assure us that anyone who is in danger of being persecuted on being returned to Iran will not be returned. However, if there is no mechanism to monitor the fate of folk who get to Iran, what is the evidence for the Minister's Answer?

Lord West of Spithead: My Lords, the noble Lord makes an important point, on which I cross-examined closely those who briefed me earlier today. The issue is complex. We make absolutely certain in our own minds that people will not be persecuted when they are sent back there, but there are great difficulties in trying to monitor this closely around the world. There is also a danger of putting the person at risk by making them very apparent, but there is a shortfall and I intend to talk to the team in the Home Office to see whether there is any way at all in which we can monitor this. It is difficult, but I will try to do that and I will get back to the noble Lord in writing.

The Countess of Mar: My Lords, the noble Lord has said that this is a complex issue. Indeed it is; I was a member of the Asylum and Immigration Tribunal until a couple of years ago. It is all right if the person has become a Christian while he is in Iran, but there is a problem with people who become Christian converts as soon as they arrive in the UK. A group of Christians converted some Iranians to Christianity, but as soon as the Iranians' leave to appeal was granted they reverted to their normal religion.

Lord West of Spithead: My Lords, my noble friend raises a point about the difficulty of the issue. We have to look at this on a case-by-case basis, rather than make a blanket recommendation. The noble Countess is right: sometimes these things change. Someone may come here saying that they need to be in this country because they are a Christian. Then they may say, "Well, it is not that. It is because I am gay and I will be persecuted for that". Then they may say, "Now I am part of a political organisation". There is a whole raft of measures. As I said, our caseworkers are well trained to conduct interviews in a professional manner. We have been engaging with religious organisations—for example, the Evangelical Alliance—to make sure that they know the right sort of questions to ask so that we can identify quickly those who really have a reason to be here. Our intention is not to return people who should be protected; it is to return those who should not be.

Anti-social Behaviour Orders

Baroness Sharples: asked Her Majesty's Government:
	What plans they have for the future of anti-social behaviour orders.

Lord West of Spithead: My Lords, for 10 years the anti-social behaviour order has been bringing respite to communities suffering from the misery of anti-social behaviour caused by an unruly minority. Since then, the Government have developed additional tools and powers to protect the quality of people's daily life. ASBOs continue to be a highly valuable tool in this respect.

Baroness Sharples: My Lords, I thank the noble Lord for that reply. Besides G 47, which other contractors are involved in dealing with these electronically monitored curfews? What is the proportion of teenagers who breach the ASBOs which are handed down to them by the courts?

Lord West of Spithead: My Lords, I am afraid that I cannot answer in detail that first question. Perhaps I may get back to the noble Baroness in writing. However, there are detailed statistics relating to this which go up to December 2006. We had issued 12,000 ASBOs, 50 per cent of which were breached. We go through a phase of warnings before we take custodial action. About 63 per cent of those who break an ASBO will end up with a custodial sentence.

Lord Dearing: My Lords, I can understand why we must take action to contain irresponsible dysfunctional behaviour, but, to some extent, the ASBO is dealing with the symptoms rather than the cause. To what extent are the Government committed in the acceptable behaviour contracts to putting in resources which identify the problem and seek to deal with it at its heart, perhaps in the family?

Lord West of Spithead: My Lords, that is exactly what we are doing. The number of ASBOs being used has declined because we are using a number of other tools and powers; for example, written warnings, home visits, acceptable behaviour contracts, and parenting orders and contracts. We have closed crack houses using premises closure orders, which have been very useful, and dispersal zones. We use the anti-social behaviour order only when there is nothing else we can do. It is very interesting that the Home Affairs Select Committee, the Audit Commission and the NAO report have found that 65 per cent of those people who had an intervention 1, a written warning, desist from anti-social behaviour after that; 85 per cent desist after an intervention 2, which is something like a parenting order and a contract; and 93 per cent of people desisted after an intervention 3, which is the ASBO. So it is having a dramatic effect and is making a difference. Admittedly, it leaves the 7 per cent, but very often, those people have each committed something like 31 offences.

Baroness Miller of Chilthorne Domer: My Lords, what are the Government doing about the raft of inappropriate use of ASBOs; for example, those served on mentally ill people and people with schizophrenia or Asperger's syndrome, or those served on people who are simply protesting? There was a notable case where the courts quashed those in respect of a number of protestors. What are the Government doing about that? When will the Home Office undertake the review that the Home Affairs Select Committee suggested?

Lord West of Spithead: My Lords, the noble Baroness raises a number of points. I would not accept necessarily that some of these are inappropriate, but I agree that we need to look very carefully at applying an ASBO to someone who perhaps has a mental disorder. We are looking at that very closely and trying to make sure that no such ASBOs are implemented. I do not think that that is exactly the case at the moment, but we are working hard to ensure that they are not laid at those people.

Lord Elton: My Lords, the Minister detailed a phalanx of treatments as alternatives to ASBOs, which we welcome. I did not hear him mention restorative justice. I realise that it is intended for more serious offences, but surely those procedures would be appropriate in these cases.

Lord West of Spithead: My Lords, I did not mean to say that offenders are not sent to prison once they have broken the terms of their ASBO. Once we have gone through the range of possible controls—it is much better to take action early, rather than when we have given an ASBO—we find that about 7 per cent of people break their ASBO, come up before the justice and are given varying sentences. Those 7 per cent tend to be people who have committed a variety of crimes but have never before been convicted.

Lord Peston: My Lords, would the Minister explain how things have changed? When I was young, this behaviour was called "hooliganism"—I speak as a hooligan—but we all grew out of it. We became very senior people in our society. When did "hooliganism" change into "anti-social behaviour", and when did Governments decide that the overwhelming majority of people simply will not grow out of it? I know that, overwhelmingly, we all did.

Lord West of Spithead: My Lords, my noble friend raises an interesting point. People have been saying to me, "These people look on ASBOs as a badge of honour". I remember getting the tawse, as it was called in Scotland—the belt or the cane—and I would occasionally boast to chaps, "Gosh, I've just had the cane". It did not mean that I tried to get caned again, although I might have been occasionally.
	I have a little sympathy for what my noble friend says, but some of this anti-social behaviour is extremely unpleasant, often violent, and it does frighten people in parts of our community. We have a job as a Government and as a nation to protect and look after the people who are vulnerable. I will answer the noble Lord's question in writing—I have not really answered it.

Lord Elystan-Morgan: My Lords, while I accept what the Minister says in its generality, is it not the case that the anti-social behaviour order, properly and sensitively used, is a valuable weapon in the armoury of the administrators of justice? Where failure occurs, it is often the result of failure by a court, normally a magistrates' court, to be precise about the exact terms of an order and sometimes because the court has used it for a much wider purpose than was ever envisaged by Parliament.

Lord West of Spithead: My Lords, the noble Lord puts more eloquently than I the point that this is part of an armoury of weapons to achieve our objective. As such, it has an important role to play. I have considerable regard for magistrates, but I am sure that occasionally they get things wrong and we need to focus carefully on this. I visited Cambridge recently to talk about neighbourhood policing. It is clear that local communities see ASBOs as an important part of the armoury. Their use does take fear off the streets and enable us to get at some people who are otherwise difficult to get at. They have a very important role in society.

Sudan: Comprehensive Peace Agreement

Baroness Cox: asked Her Majesty's Government:
	What is their assessment of the implementation of the comprehensive peace agreement in Sudan.

Lord Malloch-Brown: My Lords, the comprehensive peace agreement has successfully prevented a return to all-out conflict in Sudan. Accomplishing the census in May was a welcome milestone. However, the CPA faces significant risks. The recent fighting in Abyei reflects unresolved disagreements. Continued slow progress towards an electoral law may delay national elections beyond 2009. We are fully engaged with both parties, and with international partners, to secure full implementation of the CPA and to try to deliver a peaceful future for the whole of Sudan.

Baroness Cox: My Lords, I thank the Minister for that helpful reply. What information does he have about the conflict he referred to in Abyei, a disputed oil-rich territory? The conflict has disrupted emergency efforts to supply food, water and medical supplies to the 50,000 people fleeing from previous conflict in the region, and has displaced a further 90,000 who are now living in hardship and hunger. Can he tell us what urgent measures are being taken to alleviate their suffering, and whether the conflict in Abyei represents a violation of the comprehensive peace agreement? If so, what has been the response of the Assessment and Evaluation Commission and other international organisations which are guarantors of the CPA?

Lord Malloch-Brown: My Lords, the Assessment and Evaluation Commission made an emergency visit to Abyei and, along with many other international partners, has contributed to pressing both sides to resolve the dispute. We therefore welcome the new agreement between the NCP in the north and the SPLM in the south to resolve the immediate crisis. Although we do not yet have the full details, the agreement includes a new joint integrated unit involving the militaries of both sides, access for UNMIS, the UN peacekeeping force in the area, and an interim administration for the Abyei area with a proposed new border and what should be an agreement on oil revenue-sharing, together with international arbitration. Additionally, the north has promised over $1 billion for the recovery and rebuilding of Abyei.

Lord Archer of Sandwell: My Lords, does my noble friend accept that humanitarian aid, important as it is, is not a substitute for effective political action, because without such action the humanitarian crisis is likely to continue indefinitely? Does he also agree that the responsibility to protect is now generally accepted in principle but frequently fails to deliver in practice? While I accept that the Government have made mammoth efforts up to this stage, will they urge on the UN Security Council the need to address the slaughter, disease, displacement, famine and slavery in the area, if necessary by direct international intervention?

Lord Malloch-Brown: My Lords, my noble and learned friend is right to say that the responsibility to protect unfortunately remains a doctrine recognised more in principle than in practice. All of us who were involved in its development had hoped that Sudan, particularly the Darfur region, would be one of the first places for its effective application. Instead we face continuing conflict throughout Sudan which, as my noble and learned friend rightly observed, humanitarian assistance alone cannot address. The UN Security Council, under the joint leadership of the British ambassador to the council, has just been in Sudan trying to achieve political progress on Abyei and more generally on north/south and Darfur issues. We continue to press for a political solution here because Darfur and Sudan as a whole remains a blot on the collective international conscience.

Baroness Rawlings: My Lords, are the Government relying on government reporting of the security situation in Darfur and southern Sudan, or are they listening to aid organisations working on the ground that might be more accurate? More specifically, which organisations are they listening to? Further, what are the Government doing to encourage China and other countries that buy oil from Sudan to use their influence in a responsible way?

Lord Malloch-Brown: My Lords, much to the chagrin of the Sudanese Government, we do not use government statistics but rely on those from the UN which are themselves aggregations of information provided by its NGO partners. The statistics paint a sorry picture of reducing access, of seven international NGO workers killed this year, of more than 125 vehicles and trucks stolen, of more than 25 drivers of those trucks still missing, and, as I have said, of less and less access to different parts of Darfur. We continue to press in the UN and elsewhere for effective action.

Lord Avebury: My Lords, in an earlier response the Minister mentioned an agreement which is said to have been reached between the north and the south on Friday, but he did not say whether it includes any mention of the sovereignty of the disputed territory of Abyei. I would be grateful if he could say a few more words about that. Further, what does the enhanced role and presence of UNMIS involve, and is there anything in writing yet?

Lord Malloch-Brown: My Lords, the noble Lord will recall that I did say that the details of the agreement are only just coming in at this stage. Therefore we do not have full information on exactly what level of UNMIS deployment will be allowed. However, we are assuming that it will be full access by UNMIS to Abyei. I also said that on the Abyei issue itself, both sides have agreed to renewed international arbitration, which presumably will deal with both the border and the oil revenue-sharing issues. I would be happy to come back to the noble Lord as more details on precisely what is intended become available, and I shall put a copy of that letter in the Library.

Viscount Waverley: My Lords, is it recognised that there is great instability flowing from Sudan into the neighbouring region and particularly into Chad?

Lord Malloch-Brown: My Lords, it certainly is recognised. Just last week I went to Paris to discuss with colleagues there the need for Britain, France, the United States and others, with the regional neighbours, to try to find a way of securing a peace agreement between Chad and Sudan. While both continue to undermine the Government of the other, we will never get regional peace.

EU-Latin America Summit

Viscount Montgomery of Alamein: asked Her Majesty's Government:
	What results were obtained from the recent European Union-Latin America summit in Lima, Peru, on 16 May.

Baroness Ashton of Upholland: My Lords, the summit made progress on several UK objectives. It raised regional awareness of the need for action on climate change and its impact on poverty. It launched a co-operation programme between the two regions on climate change. It helped to generate renewed momentum on the millennium development goals in advance of the September UN meeting and it was an opportunity to press for intensified co-operation on drugs.

Viscount Montgomery of Alamein: My Lords, that is a very encouraging reply. The delegation led by the Leader of the House has obviously been a great success. In view of her first ever visit to Latin America—I hope she will return frequently—can I prevail on her to use her new-found enthusiasm to persuade her Cabinet colleagues that they ought to take Latin America a little more seriously than they have in the past few years and to stop closing down some embassies, down-grading others, virtually eliminating the British Council effort there and generally taking us back to where we were some years ago?

Baroness Ashton of Upholland: My Lords, the noble Viscount, to whom I pay tribute for the incredible way in which he has kept this region on the agenda in your Lordships' House and, indeed, for the Government, for a very long time—he was instrumental in my going on that trip and I did indeed return enthusiastic—will know that I do not quite accept his analysis of the response of the Government. We are doing a lot of work in the region, not least in our development assistance, which has increased; in the work with organisations in different parts of the region; and in the support we gave through the summit and through other measures.

Lord Avebury: My Lords, I declare an interest as president of the Peru Support Group. I thank the noble Baroness for her reply to a letter from the group sent before the summit asking it to address matters such as inequalities of wealth and income, damage caused to certain communities by mining developments, and the climate change problem that she mentioned. On that point, is it generally recognised now that the Andean glaciers will disappear by 2050, according to authorities such as the Stern report, which means that very serious problems as regards drinking water will arise in major urban centres, not only in Lima, but in places including La Paz, and what has been done by the summit to address that problem?

Baroness Ashton of Upholland: My Lords, the noble Lord, Lord Stern, provided a video for the summit which I did not see in the group I was in, but which I know was very well received. It tried to tackle some of the issues that the noble Lord has raised. There is more general acceptance of the point that he raised. The whole point of the UK intervention was to get an understanding of the link between climate change and poverty and to start to address some of the basic facts of life; for example, the drinking water issue that there will certainly be in that region.

Lord Howell of Guildford: My Lords, the summit which was, of course, attended by the Leader of the House with amazing celerity and vigour between EU debates, was dominated by the terrifying question of soaring food prices and food shortages. Was a clear link established at that gathering between the switch of farm crops from food to biofuels and food prices? Was a distinction made between energy-efficient biofuels made from cane sugar which come from Brazil, and the biofuels produced by corn farmers in America and Europe, which are energy-inefficient and are undermining food prices? Was any agreement in sight from the EU side that it would abandon the very demanding commitment to an increase in biofuels for all our energy use over the coming years, which appears to be adding to the problems of food prices?

Baroness Ashton of Upholland: My Lords, during the summit, the two regions agreed that they wanted to encourage more sustainable patterns of consumption and production and to make sure that we exchange experiences on biofuels technology. The noble Lord knows that the issues surrounding food prices concern not just biofuels but bad weather, low stocks, restrictions on trade by exporting countries and increasing prices for oil, fertilisers and other inputs. However, we accept that sustainable biofuels have a role to play. This was one of the features of the summit, as the noble Lord would expect. As far as the EU is concerned, we will have to await developments. The Prime Minister has made certain that they will be carefully examined in the light of the results of the review which is under way.

Lord Foulkes of Cumnock: My Lords, can I reassure my noble friend that there are some of us on her Benches who share the noble Viscount's interest in Latin America? I invite anyone else who would like to do so to come to Room 4A at five o'clock tomorrow afternoon when His Excellency Carlos Morales Troncoso, the Foreign Minister of the Dominican Republic, will be the guest of the Dominican-UK all-party group, of which I have the honour to be president.

Baroness Ashton of Upholland: My Lords, I have nothing to add to the advertisement.

Viscount Waverley: My Lords, the Lord President mentioned drugs in her initial response. Was the contribution to Colombia's travails by President Uribe recognised and, if so, what further support was agreed to?

Baroness Ashton of Upholland: My Lords, there was recognition. In fact, my honourable friend Kim Howells and I had a bilateral meeting with President Uribe of Colombia in which we covered a range of issues: climate change, poverty, human rights and drugs co-operation. The president was keen to highlight the developments that have taken place in Colombia, which he is very proud of, but he recognises there is much more to do. This is an important part of his contribution to the summit debate.

Baroness Thomas of Walliswood: My Lords, my question relates to the removal of DfID staff and DfID activities from many South American countries. My particular interest is in Peru; I understand that it is now, technically speaking, an average-income country, but there are, nevertheless, very poor people living in the mountain regions. What help can DfID staff from, say, Bolivia give in those regions?

Baroness Ashton of Upholland: My Lords, DfID is organised is to enable support and help to be given, but I do not want noble Lords to think that we were not investing in the region with the support that development assistance is giving. The funding in the region will increase from £84 million in 2007-08 to £97 million in 2010-11. As the noble Baroness indicates, staff are working collaboratively.

European Union (Amendment) Bill

Baroness Ashton of Upholland: My Lords, I beg to move that the Bill be now further considered on Report.

Moved accordingly, and, on Question, Motion agreed to.
	Clause 6 [Parliamentary control of decisions]:
	[Amendments Nos. 17 to 24 had been withdrawn from the Marshalled List.]

Lord Goodlad: moved Amendment No. 25:
	After Clause 6, insert the following new Clause—
	"Parliamentary control of opt-ins
	(1) A Minister of the Crown may not commit the United Kingdom to new obligations, or alter the obligations of the United Kingdom, under the following provisions unless Parliamentary approval has been given in accordance with this section—
	(a) Article 3 of the Protocol on the Position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, as amended and renamed by the Treaty of Lisbon, permitting a notification of the wish to take part in the adoption and application of a proposed measure pursuant to Title V of Part 3 of the Treaty on the Functioning of the European Union,(b) Article 4 of that Protocol, permitting a notification of the wish to accept a measure adopted pursuant to Title V of Part 3 of the Treaty on the Functioning of the European Union,(c) Article 4 of the Protocol on the Schengen acquis integrated into the framework of the European Union, as amended by the Treaty of Lisbon, permitting a request to take part in some or all of that acquis,(d) Article 10(5) of the Protocol on Transitional Provisions annexed to the Treaty of Lisbon, permitting a notification of the wish to participate in acts which have ceased to apply to the United Kingdom pursuant to Article 10(4) of that Protocol.
	(2) Parliamentary approval is given if—
	(a) in each House of Parliament a Minister of the Crown moves a motion that the House approves Her Majesty's Government's intention to commit the United Kingdom to new obligations, or to alter the obligations of the United Kingdom, and(b) each House agrees to the motion without amendment.
	(3) In this section "the Treaty on the Functioning of the European Union" means the Treaty establishing (what was then called) the European Economic Community, signed at Rome on 25th March 1957 (as amended and renamed by the Treaty of Lisbon)."

Lord Goodlad: My Lords, Amendment No. 25 stands in my name and the names of the noble Lord, Lord Rowlands, the noble and learned Lord, Lord Morris, and the noble Viscount, Lord Bledisloe. The amendment was first debated prior to the publication of the Government's response to your Lordships' Select Committee on the Constitution report to the House; the report was published on March 28 and the response has since been issued. I shall not reiterate today all the arguments that were advanced in favour of the amendment during the previous debate. Suffice it to say that, in the area of freedom, security and justice issues, criminal law and policing are being brought into Title V of the treaty on the functioning of the European Union, an innovation that your Lordships' committee was advised, in evidence, amounted to fundamental constitutional change.
	Your Lordships' Select Committee recommended that the Government obtain approval from both Houses of Parliament before using so-called opt-ins or opt-outs. The committee said that that would be consistent with the Bill's policy to require parliamentary approval of the simplified revisions procedure and passerelles.
	The amendment received expressions of support from all sides of the House in Committee. European matters have transcended traditional party lines since the debates of the early 1970s prior to British entry into the then European Community. Had they not, Britain would not be part of the European Union. They have transcended traditional party allegiances, as I personally have reason to remember from more recent parliamentary deliberations.
	Noble Lords, before and since the United Kingdom's entry into the then European Community, have consistently argued at the hustings, in Parliament and elsewhere for a strong and effective participation in the proceedings of what is now the European Union; I number myself among them. They are acutely conscious of the need to maintain public confidence in what the Government do in Europe on our behalf. Senior officials who often labour long into the night negotiating for British interests in European fora, some distinguished alumni of which I see in their places today, are similarly aware of that necessity—hence the need for the most effective possible parliamentary scrutiny.
	Since the Bill was in Committee, the noble Baroness the Leader of the House has engaged in extensive consultations, although not in any sense trying to—perish the thought—nobble committee members. She gave evidence to your Lordships' Select Committee on the constitution last week and, since then, has circulated a memorandum on justice and home affairs opt-ins. By the end of last week, she had succeeded in obtaining interdepartmental approval from the relevant government departments. Although, in an ideal world, it would have been convenient for the House to have had sight of the proposals at an earlier stage, as the Select Committee did, noble Lords who have been involved in seeking to achieve interdepartmental approval will recognise the phrase "trying to herd cats". If I am reincarnated as a cat, there is nobody by whom I should prefer to be herded than the noble Baroness.
	We look forward to hearing the proposals that the noble Baroness the Leader of the House has brought forward after listening to your Lordships. In the mean time, I beg to move.

Baroness Ashton of Upholland: My Lords, the noble Lord, Lord Goodlad, suggested earlier that it might be helpful to the House if I rose now to explain the proposal. I say to the noble Lord that I am a fervent cat lover and, therefore, were he to return as a cat, I can assure him of my best attentions at all times. I agree with him that I was in no way seeking to nobble anyone; rather, I was seeking to listen, to take note and to put forward proposals on the back of the debate in Committee.
	We have circulated details of the proposals to everyone who has spoken in Committee or on Report so far. I am extremely grateful to the Constitution Committee for enabling me to appear before it last week. I am also grateful to the EU Committee, which met on the back of my initial proposals and gave me helpful feedback. To be complete, I have incorporated into the proposal all suggestions made to me by both committees on how we might enhance that. I do not say this to "herd" them into having to agree with me on everything; I say it to make it clear that I did not stop there but took note of what was put before me.
	I begin where I left off in Committee. I was struck, as I said to the Constitution Committee, by the fact that your Lordships were seeking to make sure that the existing scrutiny processes, which we consider to be extremely good, were looked at again in the light of changes that were going to be made to justice and home affairs and that the proper and appropriate role for Parliament and your Lordships' House should also be considered. The original amendment tabled in Committee by the noble Lord, Lord Goodlad, was a serious proposition that the Government thought was worth looking at. We took it away and had a look at what might be feasible, bearing in mind contributions put forward in debate and in consultation with the offices of the Attorney-General, the Home Secretary and the Secretary of State for Justice, which have endorsed what has come before your Lordships today.
	I will briefly take your Lordships through the proposal that we have in mind. We begin by taking on board something raised by a number of noble Lords, which is the desire to have a sense of where the Government are going in strategic terms on justice and home affairs and to deal with the issue that I raised in Committee of seeking not to salami-slice all the different opt-ins, making a decision on each one potentially out of context with the others. First, the Government commit to bring forward on an annual basis a report that looks ahead at what the approach to the justice and home affairs policy and forthcoming dossiers would be, including where we know what our position would be on the opt-ins. I say "where we know" because, as I explained in Committee, it is not always possible to know, not least because of the consultations with other departments, stakeholders outside and the devolved Administrations. However, certainly where we do know, we will make it clear.
	Every year that report would come forward to Parliament and it would be made available for debate in your Lordships' House and another place. It would then form the basis of noble Lords' understanding of the Government's strategic approach for the year. The European Union Committee would be informed of comments made during those debates, which would help it to understand where your Lordships felt that there were issues that needed to be addressed in greater detail and issues that might be brought forward again. At the end of the year, we would reverse the process and produce a retrospective report that said what we had done, what the application of the protocol for opt-in had been, where we had opted in and where we had not opted in. That way noble Lords would see both ends of the annual spectrum, if I can put it like that.
	When it comes to individual dossiers, the Government will put an explanatory memorandum before Parliament as swiftly as possible. We already agree that we would do it within 10 working days. "As swiftly as possible" means that we will endeavour to do it more quickly than that, but the maximum timeframe would be 10 working days. That would set out the proposal and, where possible, specific views as to whether or not the Government thought that it would opt in and the factors that were taken into account in making that decision. The committees in both Houses would then have the opportunity fully to review the proposal and the approach that the Government had taken on whether to opt in.
	Let me recap on the opt-in procedure. The Government have precisely 13 weeks from the proposal being given to make the decision whether to opt in. If the Government do not opt in, they cannot participate in the working group discussions, support other colleagues in the European Union or affect what happens in debate on the issue concerned. They have the right, once the decisions have been finally taken, to opt in at the end of the process with the permission of the Council and the Commission, but they will not have been able to participate. Not opting in to a proposition that we might wish to is a serious matter for your Lordships to consider.
	Provided that the committee presents its views on what the Government are proposing within 13 weeks, the Government will take into account the committee's opinion on whether the UK should opt in. During that time, committees can, as now, call a Minister to give evidence and they can make a report to the House. If they wish to make a report to the House recommending a debate, perhaps on a Motion on which there can be a vote, they can do so. In other words, within the timeframe that we have set, the committee can bring to your Lordships' House for debate an issue that it believes is significant and that your Lordships would wish to consider and it can propose to your Lordships that there should be a vote, which the Government would take into account.
	In putting forward this proposal, the Government commit that they would find government time for such a debate, which would be agreed, as ever, through the usual channels. As I said, where this is done within eight weeks, we shall seek not to come to a conclusion before that, where possible. However, there is a tiny exception to that. When I looked back at all the different decisions that had been made, I noticed that there was one area in which decisions had been made more quickly, which related to the final text of a readmission agreement. These are often concluded with third states late in the day and concern people being returned to third states. Sometimes these come forward much more quickly to allow signatures to be sought at meetings. However, the committee will be familiar with those situations. Where a need to move more swiftly suddenly arises, we undertake to talk to the committee about how to deal with this procedure in that light. However, I stress that it is exceptionally rare for that to happen. I merely put it on the record for completeness. We shall ensure that we keep the committee fully informed if that were ever likely to happen.
	We shall ensure that a Minister is available to appear before the committee. We suggest that this package of measures—comprising the annual reports at the beginning and end of the year, the explanatory memorandum, the guarantee of ministerial appearances, the Government's promise not to make a decision within the eight weeks, the right of the committee to bring forward debates and the right of your Lordships' House to vote on that—can be reflected in a code of practice. We also believe that, to obtain certainty in your Lordships' House, we should either amend the scrutiny reserve resolution or bring forward a new resolution to sit alongside it. Lest your Lordships fear that we might pull a fast one by putting forward an unamendable proposition, the resolution will be able to be amended in your Lordships' House. It would also be voted on in your Lordships' House and in another place. It would incorporate all that I have said, after we have gone into the finer details with the noble Lord, Lord Grenfell, and his committee to ensure that we have captured absolutely everything. Your Lordships would then see it and agree to it or amend it to ensure that it was scrutinised. The noble Lord, Lord McNally, proposed that we should review this whole process—it is always good practice to do so—within three years to ensure that it is functioning properly.
	That is the process that we have put forward. I shall not say much more about it except to mention that I checked how many opt-in resolutions or proposals we thought there would be over the coming three to five years, bearing in mind the new position. At present the average figure is about 30 to 40 a year. Due to the coming out of and going back into a whole series of measures, your Lordships will be faced with between 50 and 90 opt-in proposals a year. Therefore, I consider that the filter mechanism of the committee determining which should come before your Lordships' House is even more important. I hope that that is helpful to the House.

Lord Hunt of Wirral: My Lords, that is very helpful to the House. I thank the noble Baroness the Leader of the House for the tremendous work that she has put in to try to find a way through this. I also thank my noble friend for the work that he and his committee have done. As he rightly said, these are matters of fundamental constitutional change. Therefore, I thought that it might be helpful if I indicated at an early stage the reaction of the Opposition to these proposals. Thanks to the noble Baroness I received at lunchtime today a copy of the proposals, entitled "Statement on JHA Opt-Ins".
	I think that we are very well served by the committees of this House. I therefore pay tribute not only to my noble friend and his Constitution Committee but also to the noble Lord, Lord Grenfell, and the work of his European Union Committee. Indeed, I had the opportunity of sitting on that committee for a number of years.
	We welcome this very important amendment. It takes us to the heart of our relationship with the European Union in general and our entire approach to the treaty. It has never been an easy relationship. Every time I see the noble Lord, Lord Roper, in his seat, I defer to him on the details, but as my noble friend just reminded us, our accession to the then European Economic Community perhaps happened only because 69 Labour MPs—guided personally by the noble Lord, as I recall it—rebelled in one historic vote. Then the small Liberal group in another place stuck to its guns and supported the Heath Government in some very tightly contested divisions on the European Communities Bill. As my own party's troubles on Maastricht and other matters European proved, it does not necessarily get any easier. None the less, all those stresses and strains are the price we rightly pay for living in a parliamentary democracy.
	It is, I suppose, a reflection of our troubled relationship with the European Union that these questions of protocols, opt-ins and opt-outs should arise at all. It is all a far cry from that original unifying vision of the six back in the late 1940s and early 1950s. But as the Union expands, so it must learn to show greater tolerance and flexibility. Indeed, as the noble Baroness the Leader of the House will know, in Clause 6 there are a number of provisions that follow the words:
	"A Minister of the Crown may not vote in favour of or otherwise support a decision under any of the following unless Parliamentary approval has been given".
	All the instances are covered from (a) to (i).
	As I understand it, the noble Lord's amendment seeks to add to this list. The amendment makes it clear that he and his colleagues are addressing a recommendation from the Constitution Committee to ensure parliamentary approval of the decision to opt-in to any freedom, security and justice provisions. In order for parliamentary approval to be given, a Motion must be moved by a Minister of the Crown that,
	"the House approves Her Majesty's Government intention to commit the United Kingdom to new obligations".
	I think that that is agreed on all sides. That is the purpose.
	We must put all that into context for a moment, as we seek to respond to the very detailed proposals that the noble Baroness has put forward. We are, of course, dealing with red lines. On 18 June 2007, when he was Prime Minister, Tony Blair stated to the Liaison Committee in another place that,
	"we will not agree to give up our ability to control our common law and judicial and police system".
	What could be simpler than that? As I understand it, this amendment seeks to prevent the Government deciding suddenly, between now and the next election, to completely change their view and to seek to go against that undertaking. But we have a new Prime Minister and new Ministers and we do not know what will happen tomorrow; we may have further people in charge. That is the fundamental constitutional change that we are talking about, together with Schengen.
	Let us judge what the noble Baroness is putting forward. I have always taken the view that it is a very good idea always to seek to improve our scrutiny procedures. That must be a given. I commend the noble Lord, Lord Grenfell, on his constant attempts to try to make sure that we move forward in our reforms. Here, we have a draft code of practice to ensure that Parliament's views are fully considered. That is a point that we on these Benches find difficult to accept, because there is no scope for even having the Clause 6 proviso here if the amendment does not form part of the Bill.
	I recognise that the noble Baroness is determined, if she possibly can, to avoid any amendment to the Bill, but this is not a fatal amendment; far from it. It does not in any way affect the treaty of Lisbon, but it does affect the way in which we in Parliament approach the serious constitutional changes that may or may not take place if the Government decide to opt in. The noble Baroness the Leader of the House is committing to table a report in Parliament each year on whether the Government would opt in and—if any views are forthcoming within eight weeks—to take account of any opinions of the committees regarding whether the UK should opt in.
	I am always nervous of the phrase "to seek". I am not going to quote The Scarlet Pimpernel, but to commit to seek to arrange a debate is not as forceful as arranging a debate. It is certainly not as forceful as saying that a debate and parliamentary approval are necessary before a matter can proceed. The final words of the memorandum are very clear; they are a commitment to ensure that Parliament's views are fully considered.
	It has also been my privilege to see the transcript of what the noble Baroness the Leader of the House told the Constitution Committee, which I believe is in draft form at present. I have a copy, and I hope that it will be made available. If I quote the noble Baroness incorrectly, perhaps she will take the opportunity to correct me. Let me quote her first—

Baroness Ashton of Upholland: My Lords, I have not had the pleasure of seeing that transcript. I have no idea why the noble Lord has a copy; I do not have one.

Lord Hunt of Wirral: My Lords, we hope that all these documents are open to everyone in the House.
	The noble Baroness acknowledged, on the idea of a vote, that it would not be binding on the Government. The noble Baroness nods. That is what worries me the most. She goes on to say that the technical answer is that the Government would remain in control of it. The whole procedure is under the control of the Government. Again, the noble Baroness nods. The noble Baroness was then asked whether the Government would feel legally bound by a vote. The noble Baroness said that she would not. Those quotations do not do anything other than remind us that we are dealing with some very important constitutional issues. The amendment is quite simple; it clearly says that if the Government are to proceed to cross a red line, they would need to come to Parliament to seek approval. I remind noble Lords that the words of the amendment are:
	"A Minister of the Crown may not commit the United Kingdom to new obligations, or alter the obligations of the United Kingdom ... unless Parliamentary approval has been given".
	That is the question before this House.
	It has been a traditional role of this place, which we prize beyond price, that we hold the Government to account. We are not debating scrutiny so much as parliamentary accountability. It is accountability that the debate turns on. I am afraid that the noble Baroness, for all her valiant attempts to seek to find a way through without amending the Bill, has neglected to give us the opportunity of utilising a crossing of the red line in the same way as we are going to deal with parliamentary control of decisions in Clause 6.
	I am reminded that Mr David Heath in the other place, who has some very strong views on this issue, said that we must take seriously the question of parliamentary approval. That is what this debate is all about. Will Parliament be given the opportunity of giving approval to a crossing of the red line, and indeed the breaking of a firm commitment by Mr Blair, that we would not in any circumstances give up our ability to control our common law judicial and police system?
	The noble Baroness is to be congratulated on trying to find a way through. I hope that we will be able to resolve today that parliamentary approval will be required if the Government decide to proceed in this direction. Whatever the result of this decision, if it means that the Bill goes back to the other place, the other place will have an opportunity to participate in the debate, which, because of the timetable Motion, it has not yet had the opportunity to do. It is vital that the other place, the elected House, has the same opportunity as we have to express its view on this important amendment, which I hope my noble friend will press to a vote.

Viscount Bledisloe: My Lords, I am a member of Constitution Committee, chaired by the noble Lord, Lord Goodlad, and I have added my name to this amendment. As your Lordships have heard, the noble Baroness the Leader of the House has toiled nobly and valiantly to discuss all the proposals with us. The question is: are the proposals on paper sufficient to enable us not to press the amendment, or should we insist on it? It is obviously right that these proposals do not amount to the totality of the amendment—government proposals in response to amendments seldom do so. But are they sufficient? In my view, they are. The difference is that under the amendment no opt-in could take place without an affirmative resolution of each House. Both Houses would have to decide to opt in, to opt out or to do anything different. Under the noble Baroness's proposal the Government need only ensure that there is a debate. Perhaps I may say to the noble Lord, Lord Hunt, that it is very hard to criticise the noble Baroness for using the words, "seek to arrange the debate". I am certain that a whole lot of constitutionalists in this House would have stamped their feet loudly if the Government had said that they "would" arrange a debate, because it is not in their gift. The noble Baroness should not be criticised for that, but I leave that on one side.
	If both Houses vote no, it is extraordinarily unlikely that it would happen. It would be a brave Government who went ahead and did it none the less. Of course, the other place might vote yes with the Government and this place might vote no. There would be no use of the Parliament Acts; there is no way that the view of the House of Commons can be imposed on your Lordships. So, there would be deadlock. I do not think that the Government can be criticised for saying that that would not be acceptable in the long run. They will consider the views of noble Lords but must have the power, if needs be, to override them. There may be ingenious behind-the-scenes diplomacy where it is badly needed. It would therefore be better if your Lordships did not press the amendment and accepted what the noble Baroness said.
	However, I would ask the noble Baroness to clarify one proposal. She did not mention in her summary the proposal that this should be reviewed three years after the treaty comes into force to ensure that the enhanced scrutiny measures are working effectively. Can she make it absolutely clear that the review is intended to improve detail and the efficiency of the system but that it cannot detract from what is promised in her statement? Subject to that, I suggest your Lordships do not press the amendment.

Lord McNally: My Lords, it may help to clarify the position from these Benches, as the three-year look at this was my idea. It would be exactly as the noble Viscount, Lord Bledisloe, just said. I am sure the Minister will confirm that. It seemed likely that people would like to see exactly where we were going. I am a strong supporter of looking at what we have done as well as what we want to do.
	Like the noble Lord, Lord Hunt, I would like to put this in context. I will not go all the way back to 1973, although it is sometimes a little hard from these Benches to be accused of inconsistency on these matters. As the noble Lord rightly says, both individuals and parties here represented have been solidly consistent about the European issue during those years. Our approach to this Bill has been that, compared with both the original Act and the amendments to the treaty, it goes further than any other in the direction of strengthening parliamentary accountability. It did so even as it set off, which won favour on our Benches. Along with that commitment to Europe has been an equally strong, consistent support for greater accountability, as my honourable friend David Heath indicated in the other place.
	What has impressed us is how the parliamentary process has worked in this Bill—the House should congratulate itself on that. We sought at an early stage bilateral meetings with the Lord President. We expressed a real and serious problem with parliamentary accountability, particularly in this area, and sought movement. At the same time, as the House has heard, she carried out negotiations with both the Constitution Committee and the European Union Committee. Looking at those discussions, again the process has worked. We are not being asked to accept either a pig in a poke or a done deal. We have been able to influence and develop the issue as the Bill has progressed.
	Like the noble Lord, Lord Hunt, my approach on this has been to ask how we maximise parliamentary accountability and at the same time maximise the opportunity for European co-operation on real issues that affect real people: crime, people trafficking, drugs and the rest. There is a danger in wanting to belt and brace the parliamentary accountability. A number of noble Lords who have intervened have long experience in government of how we get the parliamentary accountability while Ministers who have responsibilities to make decisions at that moment are able to do so in a reasonable way.
	It strikes me that because of what has happened during the passage of the Bill and the approach of the noble Baroness the Lord President, we have reached a point where Parliament now has within its grasp a greater opportunity for accountability on European matters. Of course, there will always be those who say that this does not go far enough and who want more guarantees—indeed, for a humble solicitor, the noble Lord, Lord Hunt, is always silky in his approach to these matters—but if we are looking for a practical advance in parliamentary accountability, along with the flexibility that the noble Lord, Lord Hunt, advocated, this goes a long way and should satisfy Parliament.

Lord Grenfell: My Lords, I am grateful to the noble Baroness the Leader of the House for reading the statement. I should preface my remarks by emphasising to your Lordships that the European Union Select Committee has not taken a position on the amendment tabled by the noble Lord, Lord Goodlad.
	I shall comment briefly on the practicality in the eyes of the European Union Select Committee of the scrutiny proposals that we have heard from the noble Baroness the Leader of the House. I am bearing in mind the fact that, in my view, parliamentary accountability is based on good scrutiny. We are grateful for the assurances that we shall receive an Explanatory Memorandum no later than 10 working days after publication of the proposal. It is important that that is strictly adhered to. I shall give the House an example. Sub-Committee F of your Lordships' European Union Select Committee is currently studying a proposal for legislation which the UK would have to opt into if it wished to participate. The Explanatory Memorandum was signed six weeks after the date of the publication, leaving our committee with two weeks in which to examine the proposal. We have to avoid things like that. Eight weeks is a demanding timetable for the Government and Parliament, and we hope that the Government can be sure that we have proper time for examination of these proposals.
	If we report within the eight-week period and recommend a debate, we are relying on the usual channels to give time for that debate before the Government opt in. That is not spelt out in so many words in the statement that the noble Baroness the Leader of the House read, and I understand why, but we need to be sure that the usual channels will unfailingly deliver when the situation arises and when called upon to do so. Without that, we cannot do proper scrutiny and this House will not have a chance to give its verdict on a government decision to opt in.

Lord Morris of Aberavon: My Lords, I welcome the statement made by my noble friend the Lord President and the care and consideration she has given to our amendment. The noble Baroness came to the Constitution Committee—indeed, she invited herself—to explain Her Majesty's Government's attitude to our amendment and the difficulties it posed. I welcome her initiative. More years ago than I care to remember, I was told that the first rule of Welsh politics was: go to the meeting, be there before the meeting, stay in the meeting and be there at the end of the meeting. That saved me endless trouble. I did not always succeed, but at least it was worth the effort, so I commend my noble friend's dialogue, which frequently achieves a great deal.
	The crucial point is that Her Majesty's Government have made a great deal of the importance of the red lines. The engineer is hoist by his own petard. The greater the importance of the red lines, the more important it is for there to be proper machinery to scrutinise if there is a change of heart. The Government have come a long way to meet our concerns in the Constitution Committee, but I would be the first to concede that they have not come all the way. They have proposed that there will be an opportunity to scrutinise and, importantly, that the Government will take account of the opinions whether to opt in or out.
	The European Union Committee will be able to separate the minor items from those of much greater consequence, which will be the kind of matters that I anticipate they will put forward for debate. It will be able to make such a recommendation on those matters to which it attaches significance. The Government will undertake to arrange the debate within the usual conventions, through the usual channels.
	Crucially, the Motion, which I surmise will be in the name of the chairman of the European Union Committee, will be amendable. That is of the utmost importance; it will not be a Motion merely to take note, but one that is amendable. Therefore, there will be an opportunity for a Division and, in practice, for the House to approve or not to approve. That is of fundamental importance. Ultimately, it is for the Government to decide. I have furnished myself with a copy of the draft transcript of the conversations that we had in our formal committee meeting. I hope that as it has been referred to, there will be no objection to my doing the same and that it will not embarrass the noble Baroness. She said,
	"It would not be binding on the government in the sense that the government's position would be that in the end a government takes a decision whether to opt in or not. My view is that a government faced with a decision not to opt in would, in a sense, find it extremely difficult to make an alternative decision to that".
	If she emphasises the colossal embarrassment of going against the views of a committee of either this House or another place, she would do a great service to the House by emphasising the words in the draft, which so far have not been amended. I repeat that I am grateful to her for her efforts. It is the nearest we can get to a formal approval by the House. It would not be the end of the matter.
	I want to add one other point. I refer again to the draft transcript, where I sought to press her about the need for some approval to be enshrined in her words. She said,
	"I am very happy to look at the wording. I am not trying to wriggle any government out of not listening to parliament. I am very conscious that I equally do not want to mislead you or the House in the word 'approval' implying the government would never ignore it. What you are saying, quite reasonably, is that if you have a deadlock in both Houses then governments have to make a decision and time runs out. Can I think about how we can make it sound stronger?".
	I believe that this is as far as we can go. There could be a difference in either House; the elected House or ourselves. At the end of the day, the Government have to govern. It is the nearest we can get, as a signatory to the amendment, to a formal approval. In my view, it is more than scrutiny; it is scrutiny-plus. That is this House's role and I would be content with that.

Lord Lyell of Markyate: My Lords, one is debating against the most charming opponent in the Lord President and one has to be deeply persuasive in order to carry the day. But, while I hugely respect the noble and learned Lord, Lord Morris of Aberavon, and the noble Viscount, Lord Bledisloe, I hope that this is not as far as we can get in the matter. As my noble friend Lord Hunt pointed out—I support his speech as well as the amendment—under Clause 6 there are a number of important occasions where it is necessary for the Government to obtain the approval by a vote in both Houses. Therefore, the concept of obtaining that approval is not something that does not exist or could not be added to.
	We are talking about the Lisbon treaty. I have the honour of being a member of your Lordships' Select Committee on the Constitution. Our committee issued a report that stated that the treaty was constitutionally acceptable and did not represent a grave danger to the constitution. However, as my noble friend Lord Goodlad pointed out, we were advised that, but for the relevant red lines—the provisions on justice, home affairs, criminal law and associated matters—it would have meant very great constitutional change. So we are discussing matters of very great constitutional importance.
	The four red lines supported by Tony Blair and the Labour Government are an essential part of the present Government's attitude to the treaty—I do not think that they have resiled from them in principle. They involve the possibility of opting out and opting in. As the noble and learned Lord, Lord Morris of Aberavon, said, there is no doubt that what the noble Baroness said has increased to a considerable extent our power of scrutiny.
	However, let me give just one example to illustrate the reason for worry. I happen to be a very strong supporter of the jury system. The present Government have made at least two—I think three—concerted efforts through Parliament to truncate the jury system. They were prevented by votes in Parliament. Would they have been prevented by non-binding scrutiny? I beg to suggest that they would not. I see the noble Baroness waving her hands. Obviously, she has a brilliant answer to this and no doubt at some point she will give it. I will wait until we hear what she says when she speaks again. I believe that Parliament should ultimately have control.
	It has been said several times that it is for a Government to govern. Yes it is, but they govern if they have the support of Parliament. If they lose the support of Parliament, their entitlement to govern either in general or in particular should be either removed or truncated. It should be controlled in relation to these extremely important opt-ins and opt-outs. It is said that that is in practice very difficult; of course I defer to the noble Lord, Lord Grenfell, who has wisely warned the House that it is extremely important to keep to the extraordinarily tight timetable.
	However—I welcome this—as the noble Baroness has said that what the Government plan to do will be the result of a report at the beginning of the year, if they plan to make some significant amendment to justice and home affairs matters, why do they not tell us then and arrange to get approval in advance—or at least arrange to get the debate going and get approval during the relevant eight weeks of the negotiation? It does not all have to be rushed ahead. If we were talking about small technical details, it might be very difficult. When I first heard from the noble Baroness, Lady Quin, that there were about 50 to 90 a year, or 400 overall, I began to think that this was a serious problem, but actually they would be packaged and the big issues would be identified in advance. Consequently, that is in no way insuperable. Indeed, it would be in the best parliamentary traditions to announce them in advance and obtain approval within a reasonable time. For those reasons, the amendment, as originally tabled by the Constitution Committee and before your Lordships today, is reasonable, sensible and in no sense extreme. I am not, as I think will be well known, a Eurosceptic. That will cause displeasure among some, but I am a great believer in the support of our fundamental constitutional rights, and it is important that we should defend them today.

Lord Rowlands: My Lords, as a member of the Constitution Committee, too, I will explain where I stand on the position presented to us by the Minister.
	From my parliamentary experience, the best possible Report stage of a Bill genuinely reflects the deliberations in Committee and consequently tries to address the issues that have arisen there. The process in Committee and between Committee and now is in the best possible tradition of a Committee-cum-Report stage. It is not only for the Minister to reflect on and address the issues, but for those of us who have spoken and who have argued the case, as I did in Committee, for the amendment. We must reflect on what we know. Do we know anything different? Do we know better? Do we need to adjust our position as a result of knowledge or experience gathered since?
	I therefore draw the attention of the House to a couple of things that are influencing my thinking and my position. First, I frankly confess, although I am sure the vast majority of Members here today are not in my state of ignorance, that I did not fully appreciate the nature and number of these opt-in, opt-out decisions. Apparently they are nothing new. I have the list here. Since 2000, some 56 decisions have been taken to opt in and opt out.
	I had the view, like the noble and learned Lord, Lord Lyell, that there were just three or four major issues on which we should focus and on which we should ensure that Parliament could decide. The truth is that this whole curious process, which I had not fully appreciated, is very different in character and content. There is a variety of opt-ins and opt-outs, many of them routine, technical or constitutional. It is therefore not feasible, as our committee originally suggested, that every opt-in and opt-out that the Government bring up can or should be subject to a parliamentary vote of approval. In one sense, therefore, the amendment does not make provision for the difference between the variety of opt-ins and opt-outs that are routine and technical and the select number that may or may not come before the House and that give rise to serious issues of sovereignty and parliamentary accountability.
	That was my revision. I now understand rather more about this opt-in, opt-out procedure. I therefore welcome the Minister's concept of an annual report, because frankly most of the opt-ins and opt-outs passed me by, and as a long-standing Eurosceptic I have tended to watch these things rather vigilantly. I have a track record that goes back to voting for a general election before the 1972 Act ever came into force. I also have a track record, as Members opposite will know, on Maastricht; I belonged to a minority in the other House on the Maastricht treaty. I therefore address this issue as a Eurosceptic, but I genuinely do not think that it is feasible or possible for the House to consider and approve every opt-in and opt-out that comes before us. That is why there must be a fundamental filtering system that is run by our European scrutiny committee.
	Once we have had that scrutiny and our scrutiny committee has, I hope, identified serious issues with serious consequences that carry issues of sovereignty, the question is: what should be the procedure of the House? I do not believe that scrutiny for its own sake makes any sense. The whole idea is that it should inform the House so that it can make a better decision. But the House has to have the right to make a decision. Does my noble friend's proposal make that possible? I understand why she has rejected an affirmative resolution procedure as exists in Clause 6. I assume it exists in Clause 6 because that clause deals, in passerelles and simplified procedures, with amendments to the treaties themselves. It is a treaty-amending process and, presumably, has a dimension of its own. I am very encouraged that my noble friend and others have included those provisions so that we cannot be bounced into treaty changes without the full knowledge and, indeed, the pre-knowledge, of both Houses.
	Since that case has been made, should that procedure be applied to opt-ins and opt-outs? Opt-ins and opt-outs are matters of important public policy—for example, law and order, justice and home affairs—which governments should bring to the people and to both Houses. Like the noble Viscount, Lord Bledisloe, on reflection, I do not support the principle that this House should have a unilateral veto over such procedures, which is what we have recommended until now. They are matters of public policy and the view of the other place should prevail if there is a difference. Therefore, I do not think that I can support a total old-fashioned affirmative resolution procedure, which puts in the possession of this House a veto over opt-ins and opt-outs.
	I am waiting for my noble friend to clarify further the process by which noble Lords at least will have the right to test the opinion of the House and to express an opinion in the House. I believe that that will be built into my noble friend's provisions and will be made available to the House. If the committee recommends that this issue is of sufficient importance, we are guaranteed two things in this code of conduct; first, that the matter will come before the House and, secondly, that it will be brought before the House in such a manner and way that it can be voted on and amended if need be. That means that this House would have the right to express its opinion on any issue of consequence that the noble Lord, Lord Grenfell, and his committee might bring to our attention.
	In this provision, we have at least the guarantee that noble Lords will be able to test the opinion of this House on a serious issue of opt-ins and opt-outs, and to vote on it. Therefore, I do not believe we should demand that further step and say that we should have a veto over such a proposal, especially if the other place goes another way. We are not just looking at issues of scrutiny. We are looking at scrutiny-plus, as my noble and learned friend Lord Morris suggested.
	Another of my concerns and why, initially, one may have looked at putting a provision in the Bill and, therefore, enshrining it in statute is the concept of a code of conduct. Codes of conduct do not have the same binding force, et cetera, as a clause in a Bill or a section of an Act. But my noble friend again has come a long way to what members of the Constitution Committee pressed her on when she came before us last week; namely, that a code of conduct should be embedded by parliamentary procedure to ensure that it cannot be unilaterally changed or altered by this Government or future Governments. If it has to be changed, the Government should have to come back to this House and the other place and seek to amend it properly. That provision was not in the original draft. I think that the noble Lord, Lord Norton, proposed it specifically and the rest of us supported it. If the code of conduct was embedded in the process, it would give an extra assurance to both Houses that no Government could change or alter the process without agreement.
	It is not feasible for this House to deal with every opt-in and opt-out that comes before us, but given a proper degree of scrutiny, a process by which the opinion of this House can be tested and voted upon and therefore exercised, and the embedding process that will ensure that this code of conduct can and will be truly accountable in parliamentary terms, I feel that I can support my noble friend's proposals. In Committee, I gently suggested to her that the kind of proposal that was in our amendment, and is now in her proposal, chimed in with the Government's attempt to bring constitutional renewal. We are doing so many other things to improve parliamentary accountability. I believe that my noble friend's recommendation chimes in with, and is part and parcel of, a process of parliamentary accountability. As someone who has been around in one way or another since 1966, and has seen parliamentary accountability wane and wax under governments of all complexions, I believe that, with this and a number of other suggestions, we are enhancing our parliamentary accountability. For that reason, I shall be supporting my noble friend.

Baroness O'Cathain: My Lords—

Lord Woolf: My Lords, I am most grateful. Noble Lords have just heard from a parliamentarian with great experience and are now hearing from a novice in parliamentary matters. I have the privilege of being a member of the Constitution Committee. I take that responsibility very seriously. As a newcomer, I was deeply impressed by the way the process occurred, with the Lord President coming before us and working to meet the genuine concerns of the Committee about safeguarding the parliamentary position of both Houses, while at the same time recognising the practicalities of the European dimension that made the situation more complex than it would otherwise have been. As far as I know, this was a novel way of meeting and addressing that difficulty. As such, it would be desirable for it to have sympathetic and helpful consideration by this House. I am satisfied that it provides the protection that we need in regard to these opt-ins and opt-outs, which are not part of the everyday diet of this House. I see it as a way of achieving the same result, with deference to what the noble Lord, Lord Hunt, said, as would be obtained by the proposed amendment that was the initial way in which the Committee sought to safeguard what we are all concerned to protect. Like some, but not all, members of the Committee, I urge the House to accept this novel initiative.
	I sought to press the Lord President on one matter of which I am very conscious. As we are dealing with questions that go to the heart of the concerns of the judiciary, there should be some indication of how the judiciary would be consulted about this immediate and quick process. So far, the Lord President has not found a way of accepting the suggestion I made, but I ask her to give it further consideration. It may be that there was no opportunity for her to do so in the time available, but if I may say so, the particular opt-ins I am talking about are of great importance to the judiciary. In the future it will not be possible for the Lord Chief Justice of the day to get in a taxi, come here and address your Lordships directly, which could have happened before, and I respectfully suggest that this concern needs to be taken into account. If the Lord President would find a way of doing that, I think that the judiciary would be most grateful.

Lord Roper: My Lords, as a member of the European Union Committee, I thank the Lord President for what she has done over the past weeks to find a solution that seems to be widely acceptable to the House. As she will know, as well as the reference in the report of the Constitution Committee, paragraph 6.275 of the report on the Lisbon treaty by the European Union Committee, chaired by the noble Lord, Lord Grenfell, draws attention to the lack so far of any systematic scrutiny of opt-ins or opt-outs in the House and suggests that there is a need for us to work on that. We should congratulate the noble Lord, Lord Goodlad, and the Constitution Committee on tabling the amendment, because we have been able to move far faster on this as a result of that and of the consequent concentration of minds than we might otherwise have expected. We now have a set of proposals before the House, although we do not have the important scrutiny reserve resolution that we will see at a subsequent stage.
	I take a different view from that of the noble and learned Lord, Lord Lyell, in that I see an important difference between these instruments and the passerelles. These instruments are of a special kind, on which the United Kingdom has to decide whether to opt in or opt out, but they are much closer to other instruments that come before the scrutiny committee. Here I agree strongly with the noble and learned Lord, Lord Morris, that we want a scrutiny-plus system, as we have established here, rather than something that runs in parallel with the passerelle system, the Clause 6 provisions. It is important that we should be able to carry out scrutiny within this period of six weeks, then two weeks and 10 days, which would give us up to eight weeks, and then have an opportunity, if the European Union Committee felt it appropriate, to bring to the House the instrument that could be opted in to.
	I suppose that there could be occasions on which the Government would announce that they were not going to opt in, but the committee felt that noble Lords ought to be given an opportunity to consider whether or not they would want to recommend that course. The thing could work in more than one way in a debate. As the noble Baroness said in introducing her proposals, what is important is that almost every debate from the European Union Committee comes to the House on a Motion to take note—that is, the Motion is not amendable. This would be scrutiny-plus because, as the noble and learned Lord, Lord Morris, pointed out, it makes it absolutely clear that these would be amendable take-note Motions. It would be up to Members of the House—not the committee—if they so wished to table an amendment so that the House could express its view; indeed, that would be similar to the provision in another place. It would be surprising if, in those circumstances, when either or both Houses had expressed a clear view against a particular position, the Government would go ahead with it. Technically, the Government would not be bound, but there would be a significant political constraint. I believe, therefore, that we have found a satisfactory solution to this.
	I end by thanking the Leader of the House for the amount of time that she has spent with her officials on finding the solution. We are anxious to see the scrutiny reserve resolution and we note that it is to be amendable, so if we are not satisfied it will be possible to have a further debate and, indeed, to make a change. In the mean time, I believe that we have a satisfactory solution and that it is therefore not necessary to support the amendment tabled by the noble Lord, Lord Goodlad.

Lord Jopling: My Lords—

Baroness O'Cathain: My Lords, like the noble and learned Lord, Lord Woolf, I am a member of the Select Committee on the Constitution; in fact, I am the seventh member of the committee to speak. I ought to point out to Members of the House that we are all speaking as individuals, even though we are members of the committee. This is not like a debate on a Motion to take note on a Select Committee report. We have all come to our conclusions—sometimes different and sometimes the same—based on the information that we have had, the data that we have seen, the witnesses from whom we have heard and, above all, what the Lord President said when she kindly came to address us last Wednesday. It is a shame that she does not have a copy of the verbatim report of the proceedings, but I have looked through it and I do not believe that that matters at all.
	I have only a few comments to make and will not detain your Lordships. The whole debate has gone from tiny details to huge issues. We were told that the British Government would die in the ditch for the red lines. I have always believed that to be so. Why, therefore, are the Government afraid of presenting their views on a situation in which we would want to opt in? Why are they afraid of presenting their views to both Houses of Parliament for debate, as is the normal procedure for debates in this House and as is the normal procedure for any government proposal in the Queen's Speech? This is the old, time-tested formula that has been in existence for centuries.
	I do not buy into the suggestion that, if we did not grasp something that came out of Brussels and go for it within eight or 10 weeks, we would be doomed for ever. That message is coming out from those who do not want to support the admirable proposal of the noble Lord, Lord Goodlad. I also do not buy into the view that a review in three years' time is a great thing and utterly praiseworthy. By that time, we will have absolutely no hope whatever of changing anything. We can review, but the purpose of a review, particularly in business, is to ensure that we do not make the same mistakes again. By that time, there would be nothing to make a mistake about. I do not buy into that idea.
	This is not about dealing with between 50 to 90 opt-ins. We are dealing with just those on the justice and home affairs issues that are fundamental to our constitution. We are not dealing with anything to do with the size of this, the price of that or the length of the other; this is fundamental to our constitution, so we should not bypass Parliament and the normal procedures of scrutiny and debate. I come unstuck with what some speakers have already said because we are not talking about the House of Lords saying, "You cannot do this"; we are talking about the normal procedure. We would, as we always do, ask the Government to review something, the matter would go back to the House of Commons and we would know where the final decision would be made. I really want us to think clearly about this issue. We should think not about the 50 to 90 opt-ins or opt-outs, but about what we are doing to our long-term jurisdiction as parliamentarians.

Lord Wallace of Saltaire: My Lords, the noble Baroness referred to the wisdom of the centuries on the British constitution, but in earlier centuries we did not have ease of travel between Britain and the Continent. Much of what has happened in justice and home affairs has been a response to the ease of travel between here and the Continent because of, for example, the invention of the aircraft; I think that the noble Baroness has some familiarity with the airline industry. Are we not partly dealing with adaptation to the revolution that is globalisation and Europeanisation, in which the noble Baroness has the opportunity, as we all have, to travel easily between Britain and the Continent, as do many other people who are not so law-abiding?

Baroness O'Cathain: My Lords, I very much admire the noble Lord, as he well knows. We have these sorts of discussions. The reality is that that is the way in which law evolves. This is something completely new and obviously we need parliamentary scrutiny even more so than on something that has been around for generations.

Baroness Quin: My Lords, like many other speakers, I am a member of your Lordships' Constitution Committee. On this issue, the noble and learned Lord, Lord Lyell, and the noble Baroness, Lady O'Cathain, are on the other extreme of arguments from me, although perhaps the use of the word "extreme" in relation to a moderate body such as the Constitution Committee is not appropriate. There is a spectrum of views in the committee. The noble Baroness, Lady O'Cathain, rightly referred to the fact that we are speaking as individuals in this debate.
	I warmly endorse the comments made by the noble Lord, Lord McNally, particularly in reminding us that parliamentary involvement in European affairs will be greatly improved overall by this treaty. That is particularly true with regard to justice and home affairs, where national parliaments across Europe—not just here—will have a more prominent role in JHA co-operation through the subsidiarity mechanism, through evaluating Eurojust's work and through greater scrutiny of Europol, as well as through a power to veto moves from unanimity to QMV in certain key areas. I believe that the arrangements that have been outlined for the Houses of Parliament in this country represent a considerable improvement on what has gone before. That is an important context within which we should view the current debate.
	In Committee, the view was frequently expressed that we should be careful about Governments trying to sneak important things through without Parliament being aware of them in the area of justice and home affairs. Indeed, my noble friend the Leader of the House referred to this when she used the phrase, "pull a fast one". Other noble Lords have referred to this concern. I am not sure that there has ever been a real danger of that happening. In my own fairly brief experience as a Home Office Minister, when I regularly attended Justice and Home Affairs Councils, I was not aware of major decisions being made that were not brought to the attention of Parliament or on which we did not have a good idea of what Parliament's views were. I am not making a party-political point because I am not aware of previous Governments operating in that way in the European sphere, either.
	However, the additional changes that the Leader of the House has outlined are welcome, particularly the proposals for a report to allow both Houses to give a strategic overview of justice and home affairs, the reporting-back mechanism, whereby we can review more effectively what has happened in this area, and the timetable for specific proposals on opt-ins. A number of speakers have already referred to the fact that there can be a large number of opt-ins. My noble friend Lord Rowlands rightly said that the aim was not to give Parliament a cumbersome system that meant examining all kinds of minor proposals that, through the normal scrutiny process, would have been deemed to be acceptable in any case. However, the procedure that the amendment envisages would be applicable in any possible consideration of opt-ins and so would give Parliament a cumbersome procedure. I believe that the arrangements that the Leader of the House has outlined are a great improvement on the ones envisaged in the amendment. I hope that the compromise that is on offer will be grasped with enthusiasm by Members of your Lordships' House.
	I conclude by saying that, although I did not support the amendment in the Constitution Committee and do not feel as strongly on this issue as others do, I recognise that the pressure exerted by the committee has resulted in real change. For that reason, I pay tribute to the committee and its members.

Lord Campbell of Alloway: My Lords, I have listened to this entire debate and the arguments. I have heard no wholly convincing argument for rejecting the proposal of my noble friend Lord Goodlad on parliamentary approval. The only alternative is the suggestion made by the noble Baroness the Leader of the House. In principle, if there were nothing else, I would of course accept that. However, there is something else. There is no real justification for choosing what the noble Baroness has said and rejecting the amendment. I hope that your Lordships will support it.

Lord Jopling: My Lords, I am goaded into contributing to this debate, having done so in Committee, not because I have the honour to be chairman of the sub-committee of the committee of the noble Lord, Lord Grenfell, that is likely to have to deal with these home affairs matters, but by the remarks of the noble and learned Lord, Lord Morris, endorsed by the noble Lord, Lord Rowlands—both friends of mine—which were entirely wrong.
	The noble and learned Lord, Lord Morris, said that this was not scrutiny but scrutiny-plus. I profoundly disagree. Over the next moment or two, I shall speak on the whole spectrum of parliamentary scrutiny. The proposal is clearly second-class scrutiny. Let us look at other forms of parliamentary scrutiny. Some statutory instruments are subject to affirmative resolution. Parliament is faced with 150 to 200 of those statutory instruments, which the Minster is not allowed to sign and turn into law unless there is a positive, affirmative resolution by both Houses.
	The proposal of the noble Baroness the Leader of the House denies that procedure to issues of opt-ins and opt-outs. Opt-ins are significantly the more important, so I hope that the noble Baroness will explain, when she responds, why there should be an inferior form of scrutiny for them. As the noble and learned Lord, Lord Woolf, said, there are issues here that go to the heart of the judiciary. They are of huge importance. Many of those 150 to 200 statutory instruments are of infinitely less importance. They often go through both Houses on the nod, without debate, but must also be approved by both Houses in a debate.
	I ask the House to consider carefully whether it is wise, when we can equalise the level of scrutiny between statutory instruments and this issue, to give a future Government the opportunity, to quote the noble Baroness the Leader of the House, to "pull a fast one". She acknowledged that, under this procedure, Governments could "pull a fast one".

Baroness Ashton of Upholland: I did not, my Lords.

Lord Jopling: My Lords, we should not give Governments the opportunity.

Lord Maclennan of Rogart: My Lords, I am glad to have the opportunity to follow the noble Lord, Lord Jopling, who, like me, serves as a member of the European Union Committee. As its chairman, the noble Lord, Lord Grenfell, reminded us earlier today, that committee has not taken a common stance on the amendment tabled by the noble Lord, Lord Goodlad.
	I profoundly disagree with the remarks that we have just heard from the noble Lord, Lord Jopling. Not all statutory instruments are subject to affirmative resolution. Not all matters that will be subject to opt-ins will be of profound importance; some of them may be quite unimportant. What is attractive about the procedure that has been advanced by the Lord President and was considered by the Select Committee is the possibility that scrutiny-plus will allow that committee to take into consideration the seriousness and the priorities of the issues and to table a Motion that will be amendable. Amendable Motions go beyond the normal scrutiny of statutory instruments, which are usually either rejected or affirmed. This seems to me a more sophisticated form of parliamentary scrutiny than what we have enjoyed before. For that, it is welcome.
	I congratulate the Constitution Committee on raising this issue. I do not find it surprising that it should have put forward a proposal that is on the surface in line with the provisions of Clause 6 of the Bill. However, it has to be acknowledged that the matters covered by Clause 6 are very different in kind from those that will be considered under the opt-in or opt-out arrangements that relate to justice and home affairs. The Clause 6 provisions, which provide specifically for a new form of control over the negotiating authority of the Government, are a new, almost revolutionary form of ex ante control and relate to the decision-making process of the European Union. They do not relate to substantive issues of policy, which are normally allowed in our parliamentary democracy to be matters for the Executive, subject, of course, to the approval of Parliament. The superficial similarity of treatment between the provisions of Clause 6 and the proposals in the amendment in the name of the noble Lord, Lord Goodlad, and his colleagues can quickly be seen to be inapposite, because what is at stake in the case of the passerelle or different methods of decision-making can have a long-lasting effect on a wide range of issues. The matters that are covered by the opt-in and opt-out are precise, specific and eminently to be considered and decided by the Executive, subject to the approval of Parliament. It is wrong to erect such—

Lord Lawson of Blaby: My Lords, the noble Lord keeps saying that the proposal that the Government have put to us means that these questions of opt-in will be subject to the approval of Parliament. However, as the noble Viscount, Lord Bledisloe, made clear in his intervention, these, however important, will effectively be at the very most subject only to the control of one House of Parliament—the House of Commons. That is the issue that faces us today.

Lord Maclennan of Rogart: My Lords, I do not read the statement made by the Leader of the House in that sense at all. It is clear that the forthcoming Motions would be amendable and could be considered by this House, following consideration by the Select Committee. As I said, that seems to me a more sophisticated approach, enabling this House to take a balanced view on the importance of the issue before it. That view may be affected—as it should be—by the consideration that the opportunity to make a move may not necessarily recur quickly, which is something that the Government may be well placed to recognise in their continuing negotiations.
	This whole debate has shown our Parliament in a remarkable light. It has not been an occasion on which positions have been taken up that are fortified by party allegiances or even stem from party allegiances; it has been a debate in which views have been advanced and modified. I suggest with great humility to the noble Lord, Lord Hunt, that he should modify the view that he expressed by listening to the views expressed by several members of his committee, which I believe were profoundly persuasive. I refer to the views of the noble Viscount, Lord Bledisloe, the noble Lord, Lord Rowlands, and the noble and learned Lord, Lord Morris. It seems to me that the House has moved forward since that important report was produced and has acknowledged the strength of the argument advanced by the noble Baroness the Leader of the House, which I hope will win the day.

Lord Marlesford: My Lords, we started this debate talking about the problems and pleasures of herding cats but I found myself thinking more and more of the problems and pleasures of herding weasels. I have never heard so many weasel words being used—inform, concede, consult, listen, debate, vote and take into account. I hope that what we are discussing today is not parliamentary consultation and influence but parliamentary control over the Government. I say that for two big reasons. First, I was lucky enough to be a member of the committee chaired by the noble Lord, Lord Grenfell, and I am now a member of the committee chaired by my noble friend Lord Jopling. How often have we seen that great phrase "scrutiny override" used? What is the reason for that? It is not so much that Ministers are ill intentioned but that they are often powerless.
	Alan Clark's Diaries state under the entry for 18 February 1986:
	"Not that it makes the slightest difference to the conclusions of a meeting what Ministers say. Everything is decided, horse-traded off, by officials at Coreper ... The Ministers arrive on the scene at the last minute, hot, tired, ill or drunk (sometimes all of these together), read out their piece and depart".
	It is to enable Ministers to control Brussels that I believe we need to vote in favour of this measure.

Lord Inglewood: My Lords, as I am neither a member of the Constitution Committee nor—for the time being, I hope temporarily only—have anything to do with the European Committee, I hope that my innumerable years' service on the Legal Affairs and Constitutional Affairs Committees of the European Parliament will enable me to make a minor contribution.
	In her elegant and plausible introduction to the Government's policy the Leader of the House made an analogous argument to that on the scrutiny of policy. Yet, as we have seen from this debate this afternoon, at European level there are two separate issues for consideration: policy and competence. Competence is a different question from policy. One could describe our discussion in shorthand terms as concerning red lines and whether to cross them. I wish to make clear that I am not a Eurosceptic and I have no trouble with crossing red lines if it is in the national interest to do so. However, in the context of competence and red lines, we are talking about Parliament's authority. In the context of whether parliamentary authority should be granted, I believe that Parliament and not the Government should be in charge. If too many proposals come before Parliament for it easily to handle, it is for Parliament to change its rules in order to be able to deal with them. This particular cart and horse should be that way round.
	We have heard a lot about accountability but I do not believe this is about that; it is about authority. The citizens of this country understand the distinction between accountability and authority and expect it to be understood and included in the Bill.

Lord Lea of Crondall: My Lords—

Noble Lords: Leader!

Baroness Ashton of Upholland: My Lords, I am in your Lordships' hands because I have already spoken, but I felt that the time may have come for me to respond briefly to the points raised by noble Lords. I see the noble Lord, Lord Hunt of Wirral, nodding. I apologise to my noble friend but I did get that sense.
	I am extremely grateful to everybody who has spoken. It is wonderful to see some people who I have not seen for a while. I promised myself that I would tell the noble Lord, Lord Lloyd-Webber, that I enjoyed "American Idol", in which he featured. I am a huge fan of the programme and I think that the right guy won. The noble Lord will know what I mean by that.
	At the beginning I said something about the transcript and that I was slightly shocked. I was shocked because I understood that the process normally adhered to is that members of the committee receive the uncorrected transcript, but normally the witness receives it as well and has a chance to comment. I had not seen it until after the noble Lord, Lord Hunt Wirral, who is not on the committee, had made reference to it. I do not know how the noble Lord got a copy of it, and I have tried to find out exactly why I did not get one. I have no objection to the noble Lord having a copy, but if I looked startled, that was what it was about. I hope to get an answer to that today.
	I want to explore the myth that this 13-week timetable may be infinitely moveable, flexible or is somehow known about long before the proposals come forward. Although we may know in general terms where proposals might be coming forward, it is my personal experience—and probably that of other noble Lords who have been in the same position—that until the proposal is received on the first day of the 13 weeks, one is not sure exactly what is in the proposal and or what the position should be. I would not want that to be misunderstood. Equally, like other Governments, we believe very strongly in consulting properly on what is in those proposals. Indeed, the noble and learned Lord, Lord Woolf, will remember that he chaired meetings at the Bank of England for me on Rome I when we were looking at the proposals. So it is a very tight timetable and that is one of the factors that I have tried to take into account.
	I am extremely pleased that noble Lords have thanked me for my contribution to the Constitution Committee. It was a great privilege to appear before the committee. I am delighted that of the four people who have put down their names to move this amendment, three have already indicated that they are satisfied with what I did. I accept that everyone is speaking in a personal capacity but I hope that the House will take note of that.
	The noble Viscount, Lord Bledisloe, said that we must be absolutely sure that we cannot go backwards in a review. That will be written into the procedure to make sure that that could not happen. The review is intended to refine and move forward, not to dig up what is agreed in this process.
	The noble Lord, Lord Grenfell, wanted to ensure that there is a guarantee of a debate and not just the usual channels and so forth. We will write that in to the scrutiny. I know that the usual channels will be comfortable with that and we will find a form of words. As I indicated, I think that the best way forward is to put alongside this a separate scrutiny reserve resolution that your Lordships will see again, debate and vote on in full before it is approved. That should be drawn up in conjunction with the noble Lord, Lord Grenfell. It will be drawn up with Mr Connarty in another place so that it is absolutely clear that the procedures of each House will be fully adhered to. The promises and commitments that I have made will also be adhered to. That will be amendable in your Lordships' House.
	In response to my noble and learned friend Lord Morris of Aberavon, the vote on the proposals that might come out of the committee would also be an amendable resolution. It is not the equivalent of a statutory instrument, which I know is one of the concerns of noble Lords. I talked in the committee about the difficulties of a vote in both Houses leading to a deadlock, not least because of the 13-week timetable. The noble Lord, Lord Maclennan, is right—some of these issues are minor and technical, some of them are more substantive. Although I know that in my conversations with noble Lords the focus has been about whether the Government choose to opt in, it is also important to look at whether they choose to come out of something. That is very important.
	It may well be that the day would come when a committee of your Lordships' House felt that it was important that the House debated and voted on whether the Government should pull out of something, in the interests of this country. The noble and learned Lord, Lord Lyell, was concerned that these might come in packages. It has never been my experience that they come in packages, and even if we had them coming one on one, they are all separate legal instruments that must be debated under the proposal and voted on individually. It is not a case of packaging it all together; they would have to be taken separately. As I have already indicated, we do not always know at the beginning of a year exactly what will be forthcoming, but we can set out our strategy and our view on the issues that we know will be coming up.
	I say to my noble friend Lord Rowlands that what my noble friend said in Committee about not necessarily being aware of all the issues around justice and home affairs and the opt-ins led to the proposal for an annual report at the beginning and an annual review at the end. It is entirely down to what he said that that will happen. I am delighted that the noble and learned Lord, Lord Woolf, is satisfied. I am looking at the judiciary. I do not have to have it for this process, but I have taken it on board and I have fed it in, as the noble and learned Lord would expect. I promise to come back to him on that.
	A number of noble Lords, not least the noble Baroness, Lady O'Cathain, have asked about the 13 weeks, which is a very strict deadline. After 91 days, if you are not in the proposal, you are not participating in the discussions and debates. You are not in the working groups, you are not influencing the decisions and you are not supporting other member states that would find it incredibly valuable to have the UK on-side. You are not amending the proposal, which may be fine, but which you may like to see made stronger. You are not there, and you are certainly not being allowed to speak in the discussions of the Justice and Home Affairs Council on the issue, because you are not part of it.
	When the process is complete, we could, if we wish, seek permission from the Commission and the Council to join the proposal, and that may well be forthcoming. However, it would be on a proposal that we would have had no say in, which we may have initially thought was in the interests of the UK, but which could be made stronger. That is an important point—

Lord Howell of Guildford: My Lords, I am extremely grateful to the noble Baroness, and I apologise for interrupting those very detailed comments. If, as she appears to be arguing, we are going to, in effect, deny the other place the opportunity to look at this issue again, we need to be absolutely clear about what she is proposing. The proposal makes an exception. It says that where an earlier opt-in decision is necessary, those rules will not apply. In fact, it will be in the Government's gift to say, "I am sorry, we have overridden that particular opt-in opportunity". Does that fit in with the detail of the timetable that she is talking about?

Baroness Ashton of Upholland: My Lords, I tried to address that in my opening remarks. I checked, and the Home Office has overridden scrutiny only once in the past year. There is a procedure whereby, when one is looking for readmission agreements with third countries—to return third country nationals from the European Union—there have been occasions when the signatories needed for the countries to agree that they are going to send back third country nationals have taken place within six weeks. That has led to a quicker process. That is the only example that I could find, and I raise it specifically to make it clear that there could be exceptional circumstances.
	When we look at the scrutiny or reserve resolution that we put before your Lordships' House, we will have had time by then to discuss with the EU Committee how it wishes us to handle it. I do not want to pretend that it has never happened, because it has. There were a specific set of circumstances in which it did happen. Therefore, I cannot pretend that it may never happen again. Such an agreement might come forward, and we will find a way of dealing with that.
	The noble Lord is right to raise the "weasel word" point made by the noble Lord, Lord Marlesford; whether there is anything that is weaselly in any attempt to say that there will never be such circumstances or that the Government could say, "Actually, there are 20 times when that would happen". Hence, my being very precise about it. We will make sure that we cover that in the resolution. It will come back to your Lordships' House, it will be amendable, and noble Lords will be able to vote on it.
	I cannot say that it will never happen, but it will be extremely exceptional. We will find a process of dealing with it that does not take away from the committee the opportunity to consider it, bearing in mind that that will be the timetable. I hope that that will help the noble Lord. Alan Clark's diaries are very good but I do not see them as an authority on this issue. I would rather go on my own experiences of the European Union and, in particular, of the Justice and Home Affairs Council.
	I hope that what I have said takes us to a place where your Lordships will feel comfortable. I am extremely grateful to everybody who has spoken. I do not know what the noble Lord, Lord Goodlad, will do—we are in his hands—but I am grateful that the other three noble Lords who added their names have thus far indicated that I have done enough to demonstrate the Government's commitment to ensure that Parliament has a proper place in this.

Lord Goodlad: My Lords, this has been an extremely valuable debate which has exposed a variety of deeply held views. I begin by expressing my renewed gratitude to the noble Baroness the Leader of the House for the extremely constructive way in which she has sought to carry forward the discussion.
	As I said at the beginning, since the early 1970s, before we acceded to the European Community, debates on European matters were characterised by a cross-party nature and traditional party allegiances were set aside. That was certainly the case in recent years, as I have good cause to remember. I am not sure that today's debate has borne out my prediction as much as I thought it might.
	My view—I speak purely for myself; other members of the Constitution Committee have expressed their own views—is that the constitution should be clarified in the Bill. We heard the commitments that the noble Baroness made on behalf of the Government and the aspirations that she expressed; some of them were inchoate but no doubt they can be clarified. As I mentioned, many noble Lords have worked in the vineyards of the hustings, in Parliament and elsewhere over many years to support the cause of Britain in Europe, and many public officials, some of whose alumni are in their places today, have sat up late at night negotiating on Britain's behalf. All are equally aware of the necessity of maintaining public confidence.
	It is preferable that provision for parliamentary scrutiny is in the Bill, and in my view the best shot so far as been in the terms of the amendment. If that is not the case, it can be returned to at Third Reading. Such has been the widespread support for that view in this House that it is within our traditions that the opinion of the House should be sought.

On Question, Whether the said amendment (No. 25) shall be agreed to?
	Their Lordships divided: Contents, 196; Not-Contents, 227.

Resolved in the negative, and amendment disagreed to accordingly.

Lord Pearson of Rannoch: moved Amendment No. 26:
	After Clause 6, insert the following new Clause—
	"Position of the Monarch
	(1) Within six months of the coming into force of this Act, the Secretary of State shall lay a report before Parliament on the constitutional position of the Monarch in relation to Her people, Parliament and Ministers—
	(a) prior to ratification of the Treaty of Lisbon, and(b) following ratification of the Treaty of Lisbon.
	(2) Within one month of the laying of the report, a Minister of the Crown shall move a motion in each House of Parliament that the House approves the report.
	(3) In subsection (2), the reference to "one month" does not include any period of time in which the House in question is dissolved, prorogued or in recess for a period of more than four days."

Lord Pearson of Rannoch: I apologise for the delay, my Lords, but I got locked out.
	I am sure that the whole of your Lordships' House is united in the deep respect, gratitude and loyalty we bear to Her Majesty the Queen. I feel sure that we all approach the amendment with the greatest care. I am advised that it is in order for us to debate the monarch's position as it may be affected by the Lisbon treaty, but we must not attempt to use the Queen's name to influence a decision of the House; nor must we impute any views to the Queen herself, whom may God continue to bless and preserve.
	The relationship between the Crown and the British people has evolved over many centuries: Magna Carta; the civil war and the execution of Charles I; the restoration, the Bill of Rights and the Act of Union have all contributed to the constitutional monarchy that we enjoy today. The Bill of Rights of 1689 is often held up as the nearest thing we have to a written constitution. The Eurosceptic movement in this country often quotes one of its principal declarations, to condemn the project of the European Union. That declaration states:
	"no foreign prince, person, prelate, state or potentate hath or ought to have any jurisdiction, power, superiority, pre-eminence or authority, ecclesiastical or spiritual, within this realm".
	Perhaps the best definition of the monarch's position comes to us from Bagehot in 1687, in his work, The English Constitution—

Lord Lamont of Lerwick: My Lords, it was not 1687.

Lord Pearson of Rannoch: I am sorry, my Lords, it was 1867. Bagehot held that the sovereign had three principal rights or powers: to be consulted, to encourage and to warn. Inherent in those three rights is of course a fourth: the right to be informed. As I understand it, that is still the generally accepted position today and is reflected in the Prime Minister of the day's weekly private audience with Her Majesty.
	I think that it is also generally accepted that the Queen has one further duty, which is to maintain a Government. One thinks here of a possible hung Parliament and the situation that arose in 1974.
	There are two other vital aspects of our unwritten constitution. One is that the Queen acts on the advice of her Ministers. The other is that in her Coronation Oath, the Queen promised to govern us and the Commonwealth according to our respective laws and customs. Many feel that those two aspects have been growing steadily more uncomfortable with each other since we joined the European Community in 1972, but that they may be brought into irreconcilable conflict by the treaty of Lisbon and as the European Union develops the powers that it will receive under that treaty.
	The first of those positions—that the Queen acts on the advice of her Ministers—is well put in the letter that Buckingham Palace is currently sending out to the large number of people who are writing to the Queen asking her to withhold her consent from the Lisbon Bill, unless it has first been supported in a referendum of the people. I cite the relevant passage from that letter:
	"Policy on the United Kingdom's membership of the European Union and the strengthening of relations between Member States is entirely a matter for the Queen's Ministers and not one in which it would be constitutionally appropriate for Her Majesty to intervene".
	The possible conflict between that tradition and the Queen's Coronation Oath turns on the interpretation of what are "our respective customs". There are those—I imagine that the Government are among them—who hold that our respective customs include the custom that the Queen acts on the advice of Ministers, whatever it is and from wherever it comes. That is the end of the discussion as far as those who adhere to that position are concerned.
	Many do not agree—mostly in our Eurosceptic movement, of course, which now comprises a majority of the British people. They point out that, at the time of her Coronation Oath, the advice that Ministers gave to the Queen was unfettered by our membership of the European Union. They suggest that the British people's most important custom was that they elected and dismissed all those who made their laws. They say that that is still our most fundamental custom.
	However, we have now reached the point where a majority of our national law is imposed by Brussels, on much of which the Government of the day can be outvoted and for which the House of Commons and your Lordships' House have become irrelevant. They fear that that situation will become worse under the Lisbon treaty, which grants the EU its own legal personality superior to that of the member states. They ask: who is and who will be really giving advice to the monarch? Is it her Ministers, or have they become merely the mouthpiece for much of what they propose? They also ask such questions as where the new EU president will leave the position of the sovereign as his role evolves. Will he come to receive ambassadors and sign treaties on behalf of the European Union with its new legal personality? Who will take precedence if the Queen visits the institutions of the European Union? These are the sorts of questions that the report requested by the amendment should seek to answer. We expect the amendment to be supported on all sides of the House. I beg to move.

Lord Dykes: My Lords, perhaps the amendment is not really necessary after all and should not take too much of your Lordships' time, particularly after the previous substantial debate. One comes back to the origins of the text, which for good Europeans is sacred. Article 3a(2) of the treaty of Lisbon reminds us:
	"The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State".
	Article 3b states:
	"The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality".
	Furthermore, Article 2(6) states:
	"The Union shall pursue its objectives by appropriate means commensurate with the competences which are conferred upon it in the Treaties".
	These are sovereign countries—positive Europeans working together agreeably more closely, as envisaged by the founding fathers, although they were not aware of the future details. We have seen how this has evolved gradually as a process: sovereign countries remaining national sovereign entities and in no way reduced by any co-operation between them on signing the series of international European treaties that brought together the previous two principal treaties of 1957 and Maastricht and have now culminated in the composite Lisbon treaty. I therefore find it difficult, as will other noble Lords, to understand why the noble Lord, Lord Pearson, is worried about this matter. The position of the monarch is in no way affected by our membership of the European Union.
	There are seven monarchies in the current list of 27 member states. Of those, I am pretty sure—I speak from memory so I hope that I am right, because it is not always possible to read all versions of Hansard of all the other national Parliaments—that the Kingdom of Spain, which is also armed with more than 1,000 years of history, the King of the Belgians, King Carl Gustaf of Sweden, the Grand Duke of Luxembourg and the other monarchies have no anxiety about this, and I do not think that in any of those national Parliaments a single amendment has been proposed to the Bill that is going through its various stages to enact and ratify the Lisbon treaty. The reason for this strange suggestion is therefore beyond me and, I think, most people.
	I recall, too, that Her Majesty and the Duke of Edinburgh paid—

Lord Vinson: My Lords, it is beyond most people because, as the noble Lord clearly and often makes the point, he and his party do not believe in the nation state. He has just said that they believe in pooled sovereignty. Behind this question is the deep underlying anxiety of the British people about how one can pool sovereignty and maintain democracy. The two are irreconcilable. I hope that he will answer that point.

Lord Dykes: My Lords, I suggest that the noble Lord simply reads the treaty. It upholds the intrinsic sovereignty of the national state—the national entity. That is repeated throughout the treaty, as it was in the previous treaties. Those things are literally unaffected under international law by the treaty-making experience of history and by the ability of sovereign countries to decide to work together. They lose nothing, even at the margin of their intrinsic national sovereignty. They take sovereign decisions so to do, mostly through their parliamentary machinery—Ireland being the only exception this time, with a referendum on Thursday.
	I believe that about 14 years ago Her Majesty the Queen and the Duke of Edinburgh paid a notable and interesting visit to the European Commission and other institutions in Brussels. Although no official report was made—it was a private visit—they were extremely interested, we understand, in these developments, which are a mirror image of the other kinds of international treaties that this country signs with other international bodies and that create ever-larger bodies as the membership of those particular entities increases. But, because of the closeness of working together under the European Union, it can be sometimes misunderstood, quite understandably, by people who have a more sceptical turn of mind such as the noble Lord, Lord Pearson, that that means somehow giving up your own intrinsic power. That is not the case and never has been. It has always been envisaged that these are sovereign member states working together. In fact, robust Parliaments elsewhere have not seen a single amendment proposed reflecting the anxieties of the noble Lord, Lord Pearson, on these matters.
	Ultimately, it comes into the realms of Euro myths. I was chairman of the European Movement in Britain when Giscard d'Estaing was chairman of the whole European Movement throughout Europe. I remember vividly how we decided to have a kind of contest whereby people in various member states could submit myth stories that they thought was true, including, for example, myths about straight bananas, blue tomatoes and a wonderful panoply of stories. We remember with great affection the Daily Express headline 20 years ago, "English student killed by German thunderstorm". The British press has not changed much because it still writes stories like that. According to my contacts with Giscard d'Estaing's staff in those days, not a single suggestion that was submitted to any national European Movement, or submitted to the British European Movement, by any of the anti-Europeans turned out to be correct. All stories were looked at carefully, including stories about hairnets for fishermen or not carrying condoms on fishing boats. All that rubbish was investigated thoroughly time and time again, and not a single so-called myth story was true.
	The heads of state of the republics and the monarchies in the European Union are sacrosanct. They belong to the national entity, which is a national member state fully sovereign in its fundamentals all the way down to the depths of its local political society. That is not in any way affected. I hope that—after the profound debates we had on such an important subject previously and in congratulating, without embarrassing I hope, the Leader of the House on a positive result in that case—this amendment will not be pressed to any suggested vote.

Lord Monson: My Lords, notwithstanding the reassuring words of the noble Lord, Lord Dykes, there is great merit in this amendment. I suspect that the Government will argue that ratification of the Lisbon treaty will have no detrimental effect on the constitutional position of the monarch and that the amendment is therefore unnecessary, rather like the noble Lord, Lord Dykes, did. But if they are so certain why do they resist the amendment, acceptance of which would greatly reassure the public who are not reassured at present? It is not as if acceptance would involve expenditure of time or money. This amendment is not remotely in the same league as an earlier one moved also by the noble Lord, Lord Pearson of Rannoch, which sought a cost-benefit analysis of the Lisbon treaty.
	Although in my view it was as highly desirable, that amendment, if agreed to, would undoubtedly have absorbed ministerial and civil service time, and would have cost the taxpayer money. In contrast, this amendment, assuming that the Government's confidence is well placed—that is a big assumption—would require only a one-sentence statement by the Minister to the effect that the monarch's position is totally unaffected by the passage of the Lisbon treaty and our ratification of it.
	To adapt the Government's stock argument when replying to innocent people who understandably object to having their DNA and their fingerprints maintained on a police file in perpetuity, if the Government have nothing to hide, they have nothing to fear by accepting this amendment. On that basis, let them do so.

Lord Stoddart of Swindon: My Lords, the noble Lord, Lord Dykes, chided the noble Lord, Lord Pearson, for wasting the House's time in moving this amendment.He went on to speak for eight minutes as opposed to the noble Lord's five, so he has no right to chide the noble Lord, Lord Pearson, for raising this very important matter. Indeed, I raised it myself at Second Reading, but I did not get a very satisfactory answer to my questions. Since they have been raised again by the noble Lord, Lord Pearson, perhaps we will get a better answer today. I will not repeat what he has said or repeat my questions.
	I emphasise that the constitutional position of the monarch is that he or she acts on the advice of their Ministers. However, in matters concerning the European Union, especially in matters decided by QMV, Her Majesty will not act on the advice of her Ministers, but on advice tempered by the decisions of 26 other countries—decisions that British Ministers might very well have opposed. The advice tendered to the monarch will not necessarily reflect the policy of Her Majesty's Government, nor that of Parliament. It will be decided by a group of foreign states. That constitutes a significant change in Her Majesty's relationship with her Government and Parliament.
	There is also Her Majesty's position relating to the Commonwealth. This will now be quite different from her relationship to this country. Presumably she will still be offered advice by her Ministers in the Commonwealth, but that advice will not be constrained by a group of foreign countries. These implications for the monarchy should be explored properly by the Government and explained to Parliament. That is what the amendment asks—no more, no less.
	Many will say that the position of the monarch is safe. However, there can be no doubt that, as greater EU integration proceeds, the institution of the monarchy could be seen as an anachronism. Many of our institutions have been undermined or reformed radically in the past 10 years. Hereditary Peers have been sent packing. The role of the Lord Chancellor has been all but abolished and the whole of the office dismissed from the House of Lords. The Law Lords have been ousted from Parliament and a Supreme Court established instead. Now the House of Lords is in danger of being abolished and, only recently, the role of Black Rod was diminished considerably, apparently without any real consultation with Black Rod himself. There have been a lot of changes over the past few years.
	Some noble Lords will not believe that the position of the monarch is under threat. However, I remind them of the behaviour and presidential style of the previous Prime Minister. Mr Blair attempted to muscle in on matters that were clearly the proper province of the royal family, and failed to correct the tendency of sections of the press and others to refer to his wife as the "first lady". Some people notice these things and are offended by them. Furthermore, it seems to me that the police and perhaps even the Armed Forces now believe that their allegiance is to the Government of the day rather than to the monarch.
	With all these significant changes, constitutional and attitudinal, to the way that we are governed, it is little wonder that there is concern about the position of the monarchy in relation to the European Union— which, step by step, ratchet by ratchet, is proceeding to full union, a country called Europe. That is why we need this debate and the amendment, which seeks to ensure that the Government report to Parliament on the position of the monarch in relation to Parliament and the people, following the implementation of the Lisbon treaty. Since I have added my name to it, of course I support the amendment.

Lord Lester of Herne Hill: My Lords, one noble Lord suggested that the Liberal Democrats are against the nation state. That is wholly untrue. On behalf of my party, let me make it clear that our position is, and always has been, that of course we believe in the nation state; of course we believe in the sovereignty of the United Kingdom; but we also believe in sharing sovereignty in the interests of the people of this country. Sovereignty is not like virginity, something that you either have or do not have. Sovereignty is the exercise of powers, which you may do on your own on issues that can be settled at national, regional or local level; or which may demand transnational—European or international—co-operation on issues such as climate change, pollution, terrorism, migration and fisheries. It is the belief of my party, and of many in the Conservative Party—some of whom are in their places today, but whom I will not embarrass by naming—and I believe is the position of Her Majesty's Government that sharing sovereignty is in the interests of this country and its people.
	My second point is in answer to the noble Lord, Lord Monson, who asked, "Why resist this amendment?". One reason for resisting this amendment is because it is wholly unnecessary. The constitutional position of the monarch in relation to the monarch's people, Parliament and Ministers, prior to ratification of the treaty of Lisbon and following ratification of the treaty, will be precisely the same. What is that position? The position of the sovereign since 1688-89, and the Act of Settlement 1700, is that we no longer operate a monarchical constitution. We operate under the principle of parliamentary sovereignty or supremacy. The Queen's Ministers advise the sovereign. The sovereign does not act in her personal sovereign capacity. As a constitutional monarch, the sovereign gives effect to the advice of Ministers who are accountable to Parliament and to the courts. Therefore, whether before or after ratification of the treaty of Lisbon, there will be no change in her constitutional position, nor in her relationship with her citizens or with other institutions of government.

Lord Vinson: My Lords, the noble Lord made an implied reference to my previous remark about sharing sovereignty, and the consequent loss of democracy. Of course one should share big issues—we have tried to in the United Nations and elsewhere. However, almost all the minutiae of our lives are being dictated by Europe. Currently 80 per cent of our regulations come from Europe and the figure is rising. This is not shared sovereignty, this is giving away sovereignty—and that, if only the noble Lord and his party would realise it, is what deeply worries the British public.

Lord Lester of Herne Hill: My Lords, I fully understand that concern. However, it is catered for in the treaty of Lisbon. Unlike previous treaties, it makes sure that the principle of subsidiarity, which states that Brussels and the European Union should not legislate or interfere where the matter can be dealt with better at national or local level, is not only a principle of the treaty, but a principle that national parliaments such as ours will, for the first time, be able to take into account. As the noble Baroness will confirm, either in her reply or later, one protocol of the treaty of Lisbon ensures that if both Houses of Parliament consider that there has been overreach in relation to any legislative innovation, then both Houses may send a reasoned opinion objecting to a particular proposal and, if necessary and with the co-operation of the Government, they will have access to the European Court of Justice to seek a judgement that there has been overreach—a breach of subsidiarity. Built into this treaty are new democratic safeguards for our country, people and institutions. There is no dispute that the principle of subsidiarity must be respected. Nor is there any dispute that we are not looking to a new Holy Roman Empire in which there will be a single state of Europe.

Lord Vinson: My Lords, these are fundamental points that we have been promised before, but it simply has not happened and it will not happen now.

Noble Lords: Order!

Baroness Ashton of Upholland: My Lords, we are at the Report stage. I shall try to be indulgent, but the noble Lord must not keep interrupting. At the Report stage, a specific question of clarification is quite in order. The noble Lord has the opportunity to make a speech himself, which might be the better way.

Lord Stoddart of Swindon: My Lords, on a point of clarification for the noble Lord, Lord Lester, since he sought to explain the position of the Liberal party, could I ask whether the party is in favour of a federal state or a confederal state of Europe?

Lord Lester of Herne Hill: My Lords, I can answer that question very briefly. The word "federal" is the most misunderstood term in the English political language; it is widely construed as relating to a highly centralised system of government, whereas as anyone can see in the federal constitutions of, for example, Germany or Canada, it is a system of allocating power to central government and to the constituent parts of that government. The degree of central control depends on the particular system. The European Union system is in one sense a federal system in that there is centralised lawmaking and devolved or decentralised lawmaking. I do not believe in a federal Union that gives most or all power to the centre within Europe. I believe, and I believe this to be true of my party, in an allocation of powers between what is in Brussels and what is in the member states. I also strongly believe in the nation states and the need to preserve their position. There is nothing defensive about that, but it is easy to characterise what I have just said as some kind of betrayal of national sovereignty. That is wholly untrue and I would be the first to leave my party if I thought otherwise.

Baroness Ashton of Upholland: My Lords, I shall be brief because we have had an interesting debate around issues that are quite broad and I would like to make progress this evening. The amendment is specific and I pray in aid the Constitution Committee. The committee published an extremely good report, to which noble Lords have referred many times in our deliberations, on the implications of the treaty for the UK constitution. The report makes no mention of the role of Her Majesty the Queen for the simple reason that the treaty will have no effect whatsoever on the constitutional position of the monarch. I said this in the closing part of my speech at Second Reading and I repeat now that the position of Her Majesty the Queen is completely unchanged by the treaty. This also means that the status of the Queen as the head of the Commonwealth is in no way changed by the Lisbon treaty. The creation of a permanent President of the European Council also does not affect the status of the monarch in any way. I hope that that gives absolute clarity on why this amendment is unnecessary and can be withdrawn.

Lord Pearson of Rannoch: My Lords, I am most grateful to all noble Lords who have spoken, in particular those who see the necessity for this report. The noble Lord, Lord Dykes, told us yet again that the EU is a collection of wholly sovereign nations collaborating together. He quoted some words that have been included in the treaties since the start. The general gist of what he quoted has always been with us but has not managed to make any difference to the inexorable secession of our right of self-government to Brussels.
	I am particularly grateful to the noble Lord, Lord Vinson, who put his finger on the heart of the matter in responding to the noble Lord, Lord Dykes, and to what the noble Lord, Lord Lester of Herne Hill, had to say, so I will not repeat his words. However, the noble Lord, Lord Lester, said that sovereignty is not like virginity in that you can share sovereignty, and he gave various examples. That is a fundamental point of difference between us. We say that sovereignty is indeed like virginity—you either have it or you do not. People say that we have given it up to Brussels, but we are actually paying Brussels billions of pounds a year to take it. Perhaps that is a separate matter.
	The noble Lord, Lord Lester, also claimed that Ministers are still accountable to Parliament and the courts. That relates to the very point that I sought to make. Ministers are no longer wholly accountable to Parliament; they are now accountable for decisions taken, often by majority voting, in Brussels. That is the difference and I suggest that it may affect the position of the monarch, who is our sovereign, and so her position is reflected in our position.
	Incidentally, I forgot to mention in my introduction that Her Majesty became a citizen of the European Union at Maastricht, which I would have thought also made some difference. I am grateful to all noble Lords who have spoken in what I think was an important debate to hold, but I do not think it appropriate to divide the House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Neill of Bladen: moved Amendment No. 27:
	After Clause 6, insert the following new Clause—
	"Enforcement of restrictions on jurisdiction of the Court of Justice of the European Union
	(1) In accordance with Article 2, paragraph 223 of the Treaty of Lisbon, and subject to the limited exceptions specified in the treaties, the Court of Justice of the European Union shall not have jurisdiction with respect to the provisions in the treaties relating to the common foreign and security policy nor with respect to acts adopted on the basis of those provisions.
	(2) In accordance with the Annexed Protocol on the Application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom, the Charter of Fundamental Rights of the European Union does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.
	(3) A court or courts in the United Kingdom designated by the Secretary of State shall have jurisdiction to determine whether a judgment or opinion rendered by the Court of Justice of the European Union is or is not in conformity with subsections (1) or (2).
	(4) If a court is satisfied that the judgment or opinion is not in conformity with subsections (1) or (2), it may make a declaration of that non conformity ("a declaration of non conformity").
	(5) Any judgment or opinion which has been subject to a declaration of non conformity shall not be binding in the United Kingdom and shall not be treated as a decision to which the provisions of section 3(2) of the European Communities Act 1972 applies.
	(6) In this section "the treaties" means—
	(a) the Treaty on European Union signed at Maastricht on 7th February 1992 (as amended by the Treaty of Lisbon), and(b) the Treaty establishing (what was then called) the European Economic Community, signed at Rome on 25th March 1957 (as amended and renamed by the Treaty of Lisbon)."

Lord Neill of Bladen: My Lords, in Committee the other day I supported the noble Lord, Lord Waddington, on an amendment that was broadly drawn but which reminded the House of the powers of this Parliament. It was criticised for rather lacking focus, but it gave me a chance to refer to how some other member states handle problems concerned with the scope of the powers of the institutions of the Union. Today, I have a sharp focus by concentrating on two powers to be denied to the European Court of Justice by, in one case, the treaty—no jurisdiction in relation to the common foreign and security policy, subject to specified exceptions—and, in the other case, by the Charter of Fundamental Rights, backed up by a specially created protocol saying that the rights referred to in the charter cannot be used to strike down legislation and practices in the United Kingdom. I do not need to give noble Lords the references because they know where they are—in the treaty in the first case and in the protocol in the second. My amendment tracks the language of those two treaty provisions. I say that because the protocol is declared to have the same force as any provision in the treaty.
	The noble Lord, Lord Dykes, is no longer in his place, but the focus that I want to start with begins with him. On 9 December last year, he put a question to the Minister for Europe, Mr Jim Murphy, which is set out in the report of the European Union Committee, in the second volume of evidence on page S73—I see that the noble Lord, Lord Grenfell, is not with us, either. To strip the question down, it was, "Are you content with the actual text in the treaty as laid down about the expansion of the Court's functions?". Mr Murphy answered:
	"In general, in the Treaty and the text we are content with the powers, remit and competence of ECJ. The significant areas we were keenest on was the relationship between the ECJ and CFSP and that is clear, and perhaps it could be argued that it just confirms what happens at the moment but it confirms in Treaty text that there is no role for the ECJ in terms of Common Foreign and Security Policy, and that was important for us".
	I pause at this point to draw attention to the fact that our European committee picks up that passage and quotes part of it in the first volume of the report, at paragraph 4.155 on page 75:
	"The Minister for Europe told us that the Government had been particularly keen to ensure that the relationship of the CJEU to the Common Foreign and Security Policy was clear, and welcomed the fact that the Treaty 'confirms ... that there is no role for the ECJ in terms of the Common Foreign and Security Policy' ... that was important for us".
	In answer to the noble Lord, Lord Dykes, at question 280, the Minister for Europe told the Select Committee that the other significant area where the jurisdiction of the European Court of Justice was dealt with,
	"was on the Charter of Fundamental Rights and ECJ competence. Those were the really significant in principle protections that we were looking for".
	In my amendment, I focus rightly or wrongly on the two provisions about the exclusion of jurisdiction on which the Government had the strongest views. That is quite clear from the Minister's oral evidence.
	The noble Lord, Lord Grenfell, who was in the chair, proceeded to put his own questions. First, he asked,
	"what, if anything, does the Protocol add to the horizontal clauses in the Charter?".
	Secondly, he asked whether the Minister would,
	"accept as inevitable the ECJ over the course of time developing jurisprudence in the field of fundamental rights by reference to the Charter and that this might in the long run undermine the Government's 'red lines'?".
	The essence of the answer from the Minister was:
	"We are very clear indeed both politically and legally as to where we are".
	I shall return to the word "legally". He said:
	"There is an acknowledgement, or perhaps acceptance ... across Europe that the Charter in and of itself does not create any additional new rights".
	Then, in answer to the noble Lord, Lord Grenfell, he said:
	"There were specific concerns in the UK that also existed in Poland and we sought to address those concerns ... about future competence creep of the ECJ in developing jurisdiction through case law elsewhere relying on the Charter. We wished to put it beyond any doubt whatsoever and that is the purpose of the UK and probably the Polish Protocol on the Charter of Fundamental Rights ... The horizontal articles do confirm that the Charter cannot expand any of the EU's powers at all. If you like, more colloquially put, it is a belt and braces approach. We are very clear, and all other countries are very clear, that the Charter does not create new rights, that is the belt, and the braces is we have got a Protocol for the avoidance of any doubt".
	I move on from what the Minister told the committee and take the House to a speech that the noble and learned Lord, Lord Goldsmith, made in January at the British Institute of International and Comparative Law. I declare an interest. I have been a member for some time. I think I am probably on the council. The last chairman was the noble and learned Lord, Lord Goff of Chieveley, and I think that I am right in saying that the current president or chairman is the noble and learned Lord, Lord Bingham of Cornhill. Academically, it is an extremely distinguished body. The attention of the House is drawn to this lecture because it is specifically referred to in paragraph 5.102 of the Select Committee's report, where the reference is given. The paper was given on 15 January this year. The typical audience would have been judges, law dons, professors, barristers, solicitors and law students.
	The noble and learned Lord, Lord Goldsmith, said that he had been involved with the charter since 1999. He had been asked by the then Prime Minister to be one of the draftsmen drawing up the charter and this list of rights. He said that that was a taxing job, which took much longer than he thought. The aim of drawing it up was visibility. The draftsmen were not then thinking of it in terms of it being a legally binding document. They wanted the various rights, which were scattered in conventions and other odd places where we were party to provisions that accorded rights, to be collected together in one place. However, no new rights were to be "minted"—that was the word used by the noble and learned Lord.
	After a year and a half, the Council, the Commission and Parliament "solemnly proclaimed" the charter as a political text—no legal status then. Time rolls on a little and we come to the constitutional treaty and the Lisbon treaty, when there was a move to give legal status to the charter. The Government insisted that the horizontal clauses should be strengthened. That was agreed and was done, but something more was needed for specific application to the UK. The noble and learned Lord, Lord Goldsmith, said in his lecture:
	"However, going into the Treaty negotiations it was clear that some within the UK still needed reassurance about the possible effects of a legally binding Charter—particularly with regard to protecting UK law. The negotiations at the June European Council and subsequent Intergovernmental Conference provided Government with the opportunity to bolster the existing safeguards and set in stone how the Charter will operate in the UK, as in all Member States".
	Notwithstanding all this care to create safeguards and notwithstanding the existence of the belt and braces, is it conceivable that the jurisdiction of the ECJ could trespass into the forbidden zone? Could there be what Mr Jim Murphy, the Minister for Europe, called a "competence creep" in the jurisprudence of the European Court of Justice?
	I come back to Mr Jim Murphy being questioned by the noble Lord, Lord Grenfell. At question 284 on page S75, the noble Lord said:
	"We had a former judge of the European Court before us here giving evidence and he rather charmingly said that they do not do propensity in the European Court, which is to say that there was not a propensity to get more and more proactive, but at the same time we were left with the clear impression that the Court will develop considerable jurisprudence in the years to come and that one of the sources of that jurisprudence will be the Charter. Therefore, even though the Charter itself will not be creating any new rights, the European Court's jurisprudence will in fact be leaning very heavily in some instances on Charter rights".
	In response, Mr Murphy said:
	"On that basis, of course, my Lord Chairman, the UK Protocol in that scenario, contrary to what has been suggested, would be significant on the basis that the Protocol is clear that no right can be derived from reliance upon a text of the Charter or the rights contained within the Charter, no new EU rights can be extended as a consequence. That is the purpose of the Protocol".
	The noble Lord, Lord Grenfell, said:
	"We will see if that turns out to be the case and time will tell".
	The noble Lord, Lord Kerr of Kinlochard, who is not in his place any more, intervened to say that the version of the charter rights that the European Court of Justice had been citing did not contain the horizontal clauses. I rather think that he meant that the charter rights did not contain the clauses in the form in which we now have them, as they have been in since 2000. In his opinion, the protocol was unnecessary and he said that there was no reason to fear what he called,
	"a constructive interpretation by a dynamic Court".
	However, we know as a fact that the Government did not act on that view. They thought that the protocol was necessary and persuaded the other member states to sign up to it.
	Let us suppose that the unexpected or the remote happens and that the European Court of Justice, at some time in the future, uses an interpretation of the charter that it has adopted to strike down rights in United Kingdom legislation. It may be difficult for your Lordships even to think about that, but suppose that there were some creep into this area. What would happen? The best guide to that is the advice that we have from the lecture given by the noble and learned Lord, Lord Goldsmith. I am now turning to the end of it; I have got to page 24. The earlier part is narrative; it is about the part that he played and how he was concerned with the original drafting, then with the protocol and with the horizontal clauses. Then he has this heading in his lecture: "What if the Charter is used to create/extend rights?". He said:
	"Despite the inclusion of these clear and binding safeguards, I've been asked what would happen if the safeguards don't work and the Charter is used to create new rights or extend existing rights. I cannot foresee how the Charter could be used to create new rights. Were I still a politician, I would simply and rightly say that I do not comment on hypotheticals. But in this more learned environment I am free to be more speculative".
	I hope that your Lordships appreciate that. He continued:
	"Were the courts to disregard the clear provisions in the horizontal articles and explanations and seek to conjure new or extended rights out of the Charter, then the UK's Protocol would indeed have teeth. It is, after all, a legally binding Protocol with exactly the same status as the Treaty provision which gives the Charter legal rights. As such, neither the ECJ nor UK courts would be able to rely on such expanded—and I would consider exorbitant—interpretations of the Charter to strike down national laws and practices or require the UK Government to change its national law and practices. In such remote circumstances, the Protocol would indeed become an opt-out. That would mean that there was a non-uniform application of uniform Union law, but there are plenty of examples of the variable application of Union law, whether by virtue of opt-outs, derogations or whatever, which are permitted or required by the Treaties themselves. Such would be the case here. But I stress again—this is entirely hypothetical—that the guarantee that the Protocol represents in this regard would only kick in in the circumstances where the clear safeguards in the Treaty of Lisbon and explanations were ignored, I cannot see that happening".
	The noble and learned Lord is clearly saying that, if the unforeseeable, very remote, actually happened, such a judgment—this is how I interpret it, although noble Lords can place their own interpretation on the words—by the ECJ, adopting what he calls an "exorbitant" interpretation, would not be binding.

Lord Lea of Crondall: My Lords, the noble Lord refers to exorbitant interpretations by the European Court of Justice. Would he not agree with the reply given to me a week ago by the noble and learned Lord, Lord Slynn, that if the Council of Ministers and the Parliament thought a policy interpretation by the European Court of Justice was not what it had meant, they would be able to change it? The noble and learned Lord added that that was the way that the procedure would work; there was no question of running amok. That was how it worked when he was president. We live in a democracy. That is what would happen with regard to the European Court of Justice. It happened in Britain with the Taff Vale judgement and the Trade Disputes Act 1906. Reversing it takes exactly the same logic. Does the noble Lord not accept that?

Lord Neill of Bladen: The noble and learned Lord, Lord Slynn, is here, my Lords, and he can respond. My experience would be that, once the court has given a judgment, it does not go back to its debating room and say it has made a mistake. There have been cases where it has looked again at a judgment but that is very rare. I do not think the Taff Vale case would be as good a precedent as the noble Lord supposes. I think that he mentioned that the other day.
	The Minister is telling us that the European Court of Justice cannot rely on the charter. He refers to the protocol being invoked then and says that we are very clear legally as to where we are. He also said that there was a legal answer if the European Court of Justice moved into this unexpected territory. One is, perhaps, entitled to infer that the Minister knew something of the views of the noble and learned Lord, Lord Goldsmith; the noble and learned Lord is now with us, so we may have the benefit of his comments on this topic.
	The idea of having different decisions in different parts of the EU, the variable geometry, is clearly contemplated in what the noble and learned Lord, Lord Goldsmith, was saying. May I give the legal argument, as I see it, as to why the UK would not be bound by a judgment of the European Court of Justice if rendered outside its jurisdiction? By the treaties, there is a transfer of competence to the Union within defined limits. That can be found in the EU treaty in the consolidated volume at articles 4.1 and 5.1 Here we have an express provision that jurisdiction is not conferred—it is a negative—as regards CFSP. We also have a bar on using the charter to create new rights or extending existing rights. That is the combined effect of the horizontal provisions and the protocol.
	Under Article 19.1 of the EU treaty, the ECJ is bound to ensure that in the interpretation and application of the treaties the law is observed. Part of the law is the agreement on member states recorded in the treaties which clearly state that there is no jurisdiction in these two areas.
	In my speech the other day I referred to Germany and Denmark; I will not weary your Lordships with repetitions but will give the reference and the key sentence. I referred to the Brunner case in Germany and the Rasmussen case in Denmark. I quoted from the last sentence of the Brunner judgment:
	"Accordingly the Federal Constitutional Court will review legal instruments of European institutions and agencies to see whether they remain within the limits of the sovereign rights conferred on them or transgress them".—[Official Report, 14/5/08; col. 1094.]
	In Germany, the supreme constitutional court reserves the right to look at instruments and see whether they—

Lord Bach: My Lords, I am sorry to interrupt the noble Lord's important speech, but I need to remind the House of the conventions in debates—which are what we consider this to be for these purposes. There are no formal time limits. Members opening or winding-up from either side are expected to keep within 20 minutes. I know the noble Lord had an interruption, but I wonder if he could begin to bring his remarks to an end.

Lord Neill of Bladen: They are coming to an end, my Lords. I thank the Minister for his prompt.
	Regarding the Rasmussen case, Denmark's top constitutional court said,
	"Danish courts must rule that an E.C. act is inapplicable in Denmark if the extraordinary situations arise that with the required certainty it can be established that an E.C. act which has been upheld by the European Court of Justice is based on an application of the Treaty which lies beyond the surrender of sovereignty according to the Act of Accession. Similar interpretations apply with regard to Community law rules and legal principles which are based on the practice of the European Court of Justice".—[Official Report, 14/5/08; col. 1095.]
	That is the Danish court saying that it will review.
	I think I might be allowed to say something about Poland because I was cut short on the last occasion, unless the noble Baroness, Lady Ashton, is unwilling to permit that. The source is quite interesting. All this material is elementary; it is in a student textbook by Professor Trevor Hartley, who is a professor of international—

Baroness Ashton of Upholland: My Lords, I just want to be clear that it is not within my gift to give permission or to withhold it from any noble Lord. However, if the noble Lord will look at the expression on the faces of noble Lords around the House, he will see a desire—

A noble Lord: No!

Baroness Ashton of Upholland: In that case, my Lords, I withdraw the remark. The noble Lord will have to make his own judgment, but we need to continue the debate as quickly as possible.

Lord Neill of Bladen: My Lords, I shall make my citation as quickly as possible. I was cut short last time at exactly the same point when the noble Baroness said, "Stop when you get to Poland".
	The source is in the sixth edition of Professor Hartley's book on European Union law. It is a reference to a website with summarised translations of the Polish judgments, so you do not get the ipsissima verba and thankfully the judgments are in English. The principal reasons for the ruling they gave in a case where Danish parliamentary deputies challenged accession to the EU treaty were as follows:
	"The communities in the European Union function in accordance with treaties establishing these organisations on the basis of, and within the limits of, the power conferred upon them by the member states. Consequently, the communities and their institutions may only operate within the scope envisaged by the provisions of the treaties".
	I will not read any more, but it says the same thing about the Court of Justice. It can only operate within the limits, and the court in Poland can review it to see if the limits have been adhered to.
	My amendment directly supports the Government's red lines. It is in accordance with views held about the law in other member states. I propose in subsections (3) and (4) of the amendment that we should handle the situation, if it ever arises, in an orderly manner and have the matter referred to an appropriate court. I suppose that that would be the Supreme Court in England and Wales, when it is up and running. I will not venture to say what it would be in Scotland; I see the noble and learned Lord, Lord Mackay of Clashfern, who would no doubt know which would be the best court to handle it. I have not given Northern Ireland any consideration. However, there should simply be a procedure whereby the issue goes to the top court, and rules should be in place, as there are with judicial review, as a filter to chuck out bogus cases.
	I apologise for taking so long but this is an important issue which I have never heard debated in this House, although I may have missed something: what do you do if the limits of jurisprudence, the boundaries of the court, are transgressed? I beg to move.

Lord Kingsland: My Lords, I speak to Amendment No. 28, which is not germane to what the noble Lord, Lord Neill of Bladen, has been saying; nevertheless, I must deal with it in this way. I can deal with it telegraphically, largely from a quotation from the Constitution Committee report of 28 March.
	First, however, as to Amendment No. 27, on 29 April—the second Committee day of the Bill—we tabled an amendment about the charter. That led to a long, but nevertheless informative, debate. Our point was not so much about the flagrant breach of the protocol as a consequence of a European Court of Justice decision, but the much more insidious danger of European Court of Justice interpretations of measures which were already applicable in this country, made as a result of litigation in other member states, changing the law here.
	The noble Lord, Lord Neill of Bladen, poses a serious problem and his solution is attractive. However, it would be a remarkably bold judgment, even by the European court, to breach so flagrantly the terms of the protocol, which expressly refer to "no further extension rights". That expression is clear. If the court were in breach of that and extended rights in the United Kingdom as a result of interpretations of the charter, then the solution of the noble Lord, Lord Neill, would be—to me, at any rate—a good one. However, I would be surprised if we were ever faced with those circumstances.
	Our problem is a more subtle and insidious one, resulting from the slovenly way in which the Government negotiated this protocol in the course of the treaty negotiations. It is clear that the charter applies in this country unless it is cut down by the terms of the protocol. The flaw of the protocol lies in its preamble, which says that the protocol is expressed to be,
	"without prejudice to other obligations of the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally".
	The point was not originally made by me from this Dispatch Box—one would certainly not have expected that anyway—but emerged in the course of the Committee examining the Bill in another place. It rightly pointed out that, in the context of the charter, the interpretation by the European court of measures which apply to all European Community member states, including this country, as a consequence of litigation emerging in other member states, would apply in this country even if they extended the interpretation in such a way that changed the law here. That flows from the way in which the preamble was negotiated. As the committee in another place said, it would have been so much better if, instead of the words,
	"without prejudice to other obligations",
	the protocol was expressed to have effect "notwithstanding",
	"other obligations of the United Kingdom".
	The fact that the Government failed to do this means that that those red lines are not watertight.
	I hope that the Government accept Amendment No. 28. It requires them simply to undertake a reporting obligation. The Constitution Committee's report of 19 March rightly reflects what has been said in a number of debates in your Lordships' House: that probably the most worrying consequence of the Treaty of Lisbon is how the scope of the European Court of Justice has widened to cover so many more competences. In effect, the only one likely to be left untouched by the European Court of Justice is that of security and international relations. In particular, the committee points out, whole tracts of justice and home affairs that previously were excluded from the jurisdiction of the court now fall within it. The Constitution Committee's recommendation is in paragraphs 122 to 124, and I conclude my observations by quoting them. They succinctly make all the points that I would have wanted to make:
	"Many of the issues we have examined in this report—including the competences of the EU, the interpretation and application of the Charter, the detailed working out of the consequences of the UK opt-outs and opt-ins (particularly in relation to the area of freedom, security and justice)—will be shaped by the European Court of Justice's adjudications in the years to come. Insofar as the European Union is an organisation based on the rule of law, there can be no complaint that this is so, even if from time to time the developments introduced have taken Member States by surprise.
	In order for Parliament to be fully informed of the European Court of Justice's interpretation and application of the Lisbon Treaty provisions, we recommend that the Government lay before Parliament an annual report on their assessment of the impact of the Court's rulings on the United Kingdom. In interpreting and applying the Charter, the European Court of Justice will increasingly refer to the case law of the European Court of Human Rights and so the relevant rulings of that court ought also to be covered in the Government's annual report.
	The provision of such an annual report would complement Parliament's efforts in recent years to seek greater information about the operation of the United Kingdom's courts through, for example, the requirement of the Constitutional Reform Act 2005 for the Supreme Court to make an annual report and the Lord Chief Justice's proposed regular reports on the court system in England and Wales".
	The Government, in a speech by the Leader of the House this afternoon, have expressed their intense interest in deepening the scrutiny of European matters. Why on earth should this not be seen as a further constructive contribution to that process of deepening and will the Government please accept this amendment?

Lord Owen: My Lords, I support both amendments but I hope that the Official Opposition will not push their Amendment No. 28 to the vote but will support a vote on the extremely interesting and important amendment tabled by the noble Lords, Lord Neill of Bladen and Lord Waddington.
	I notice that the former Attorney-General is in his place. I had not before read the very interesting speech that he made on 15 January 2008. In dealing with the charter, he summed up the Government's position. I totally agree with him but his words are very important. He said:
	"The aim was not to deny the importance of fundamental rights, but precisely the opposite: to prevent them being confused or diluted or the status of the European Convention on Human Rights and of the Strasbourg Court downgraded by the introduction of a rival set of rights".
	I believe that is a serious and valid objective. It has been a very important decision to make the European Court of Human Rights charter justiciable in this House. I would have liked to have done it in 1978 when an attempt was made inside the Labour Cabinet. Despite a lot of alarmist predictions, it has withstood pretty well the passage of time.
	It is rather selfish of us to deny those new states in the European Community which may not have been involved in the European Convention on Human Rights for very long, or not at all in rather more cases, their own home-grown fundamental rights. I do not cower from the fact of introducing fundamental human rights but I think the points made by the noble Lord, Lord Neill of Bladen, are extremely important. We know that there are people who want to replace the European Convention on Human Rights with the charter of fundamental rights and there are people who want to expand the wording. We therefore do need safeguards. The interpretation put on the speech of the noble and learned Lord, Lord Goldsmith, is a fair one. I am sure he will leap to his feet if he thinks there has been any misinterpretation of his words. He made it perfectly clear that he thought there would be no change in the protocol, a point which was also made by the spokesman for the Official Opposition. This is not good enough. We have an opportunity here to make sure that there are no changes. We know that there are serious people out there who have anxieties about this treaty.
	I would like to take up a little more time of the House on the other aspect of this amendment that deals with the common foreign and security policy. Here I call in aid a very interesting memorandum by Professor Takis Tridimas of Queen Mary, University of London, to the Sixth Report on the European Union (Amendment) Bill of the House of Lords Constitution Committee. In that evidence he says:
	"Under the Lisbon Treaty, the Court's jurisdiction continues to be excluded from matters falling under the Common Foreign and Security Policy".
	We have heard that very often in this debate.
	"Such exclusion applies both with respect to the provisions relating to the common foreign and security policy and 'with respect to acts adopted on the basis of these provisions'. It is not clear whether this provision excludes jurisdiction only in relation to acts adopted wholly under the CFSP or also in relation to acts adopted under a dual legal basis ie based both on the CFSP and another Union policy, for example, freedom, security and justice".
	In my view it is quite likely that that is the area where we must focus our attention. He goes on to say:
	"Such dual basis may be used, for example, for anti-terrorist measures. Since restrictions on the right to judicial protection are to be interpreted restrictively, it is more likely that the ECJ will be willing to review measures based partly on CFSP".
	There is again here a potential loophole and the amendment tabled by the noble Lord, Lord Neill of Bladen, closes that loophole as far as it is possible to do so.
	I have already pointed out that the other loophole is that the activities of the new President of the European Council will come under the jurisdiction of the European Court of Justice. Since the bulk of the activity of the President of the European Council deals with common foreign and security policy, particularly in areas where it may link into terrorism, it is in that area that some of us feel that there needs to be some restriction on the authority and the legality and its follow-through for the president of the Council. This new post is unfettered other than by the Council Members. If the European Court of Justice was to use this as another lever, that possibility would be closed and limited by Amendment No. 27. I hope the House takes the opportunity of having this on the statute book. As far as the Government are concerned, it seems to me the very minimum of a belts-and-braces safeguard.

Lord Waddington: My Lords, the noble Lord, Lord Neill of Bladen, very helpfully went into a great deal of detail. In support of his amendment, I would like to try and refine the issues. In essence they are quite simple. The Government wish to limit the jurisdiction of the European Court when it comes to the charter of fundamental rights and to exclude it entirely in the area of foreign and security policy. They say that the protocol and the opt-out are necessary in Britain's interests but plenty of very knowledgeable people have said that neither the protocol nor the opt-out is watertight. I am not going to rehearse in detail what has been said by the Commons committee, Open Europe and other bodies, but I would remind your Lordships that the EU Committee of this House says at paragraph 5 of its report:
	"The interpretation of the protocol is a matter for the courts and ... we do not think it is possible to predict precisely what the courts would decide if faced with the task of interpreting the Protocol's language".
	You can say that again.
	It is also interesting to note that paragraph 7.40 of the impact assessment records:
	"Open Europe expressed scepticism that the Court could be kept out of the CFSP, submitting that the extent of the [ECJ's] jurisdiction over areas within CFSP remains unclear".
	The relevant passage in the evidence is C39, and it is plain from that evidence that Open Europe is not alone in taking that view. So the question arises of what happens if the European Court determines that the protection Britain thought she had won, and the protection that the other member states thought they had given Britain, simply does not exist. Some in this place seem to say that there is only one answer, "Bad luck Britain. The court is supreme and master of its own jurisdiction. Sorry, Britain, but the court has concluded that you were sold a pup". The noble and learned Lord, Lord Slynn, even went so far as to say:
	"There is no way that a regional system of justice can avoid accepting the principle of uniformity".—[Official Report, 14/5/08; col. 1057.]
	The use of the word "regional" slightly grated with me. It is hardly encouraging and throws light on the cast of mind of some engaged in the European project, but I shall pass over that. The point is that those remarks made by the noble and learned Lord, Lord Slynn, were a prelude to his conjuring up a picture of chaos which he thought would result if each country's court could place its own interpretation on European law. But where is the risk of chaos when we are not talking of every country claiming the right to disagree with the Court's interpretation of a law properly passed but about what is to happen when the Court claims jurisdiction in an area where every country has decided at the time of ratification of the treaty that it has no business in that area?
	Judging by his speech on 15 January, the noble and learned Lord, Lord Goldsmith, does not seem to think that if the European Court was to conjure up new rights under our charter, our courts would have to apply them. Therefore, this amendment is designed to make plain that if the European Court of Justice tries to bite into the protection from its jurisdiction which the treaties have tried to afford, and which every member state has agreed to, a court in this country can rule that any such judgment or opinion will not be binding in the United Kingdom. It is really a matter of belt and braces and a reinforcement of the protection the Government say is necessary, the protection which the Government have tried to procure through the protocol and the opt-out. How on earth can that be bad?
	I shall not repeat what the noble Lord, Lord Neill of Bladen, said about Poland and Germany except to pose the question: why should the United Kingdom not assert in the same way as Germany and Poland have done that it has the right to judge whether the ECJ has gone beyond the four corners of the treaties? I am happy to support the noble Lord's amendment.

Lord Goodhart: My Lords, I shall speak against Amendments Nos. 27 and 28. There are always questions of the interpretation of statutes at all levels from the international, such as the EU, down to local authority powers. However, we cannot legislate here in the expectation that the European Court of Justice may become entirely irrational or deliberately misinterpret EU legislation or EU treaties. As those who listened to the remarkable speech of the noble and learned Lord, Lord Slynn, on 29 April during the second day of the Committee stage will have appreciated, this really is not the case. The ECJ will not become irrational, nor will it deliberately misinterpret EU legislation in order to extend its own powers. We cannot, and must not, legislate on that basis.
	Amendment No. 27 seeks to introduce a new clause, subsections (1) and (2) of which simply restate, accurately enough, the relevant provisions of the Lisbon treaty. Subsection (1) relates to the jurisdiction of the European Court of Justice over the common foreign and security policy, the CFSP. Subsection (2) relates to the jurisdiction of the EDJ in relation to the Charter of Fundamental Rights. It seems that these provisions are intended to apply only if a case has been decided by the European Court of Justice to the disapproval of those in this country who take a different view. The amendment has technical defects. First, it is not clear whether the jurisdiction under the new clause can be exercised only if an issue has been raised in a hearing before the European Court of Justice about the extent of its powers, or whether it can be raised under subsection (3), even if no jurisdictional issue was raised before and decided by the ECJ. Secondly, it is not clear who can raise the issue in the United Kingdom or how they can raise it.
	However, even without these defects, which no doubt would be capable of being cured, the amendment is much more deeply and fundamentally unsatisfactory. It is a basic rule of a legal system that a court decides on the extent of its own jurisdiction in accordance with the rules and laid down by statute and precedent. That decision is binding unless it is reversed on appeal by a higher court. It is plain that no court in the United Kingdom is a higher court than the ECJ. On ECJ matters, it is obviously the other way round. That is why, for example, if a serious question of European law arises in a case before the House of Lords or a lower court in the United Kingdom, that question must be referred to the ECJ for decision. That decision binds all the courts in this country, including the House of Lords, or the Supreme Court, as it will soon become.
	The reasons for this are obvious. Only the ECJ can give a decision which is binding on all the member states. Any decision by the House of Lords will be binding only in this country. A similar situation applies as regards any decision by the courts of any country from Cyprus to Portugal. An impossible situation would arise if 27 national supreme courts could give a different interpretation to EU treaties. That is plainly obvious as regards decisions on the CFSP covered by subsection (1) of the amendment. We cannot have different meanings attributed to the CFSP by different states. At first sight this may be less obvious in relation to subsection (2) of the amendment, which repeats Article 1, paragraph 1, of the protocol, which applies only to the United Kingdom and Poland. However, the question here is: what does Article 1, paragraph 1, mean? It is a negative provision which states that the powers of the ECJ are not to be extended. Therefore, we have to start with a decision by the ECJ that has not extended its powers, either actually or by implication, and that the decision is being challenged in proceedings in the United Kingdom. If the United Kingdom court has power to decide that the ECJ has exceeded its powers, and that the decision of the ECJ must be ignored, one is allowing an inferior court to override a superior court. That is not relevant just to what happens in the United Kingdom. A decision on what are the existing powers of the ECJ taken by the ECJ itself will affect all EU member states.
	The preamble to the charter says that it reaffirms rights; it does not say, and we all agreed on this, that it extends them. Any decision by the United Kingdom court that the ECJ had extended its powers would involve the interpretation of what those powers are not only in relation to the United Kingdom but in relation to all states, subject to the charter. That must be a decision for the ECJ and not for the United Kingdom court because if it is the other way around, we end up in the same position, that the supreme court in each independent state within the EU can decide the existing powers of the ECJ.
	The motive behind this amendment seems to be the belief that the ECJ will consciously use its powers to reduce the powers of the UK courts and to increase those of the ECJ by means of decisions which are plainly inconsistent with its powers under the EU treaties. That should—although I doubt if it will—put to rest what I regard as the essentially paranoid views of some opponents of the Bill about the way in which the ECJ works. It is not an organisation which will deliberately set out to impose its own views on the EU as a whole. It can, and surely will, as it has in the past, operate on the basis of a proper, serious and thought-out view, assisted by the Advocate General who is a figure of considerable power, about the questions that come before it.
	I now turn to Amendment No. 28. This amendment is considerably less harmful—

Lord Pearson of Rannoch: My Lords, before the noble Lord turns to Amendment No. 28, would he not admit that the British Government have been very surprised on several occasions over what they regarded as the judicial activism of the Luxembourg court? I give him, for instance, the occasion when the British Government thought they had signed the Maastricht treaty and were not part of social policy, and the court turned around and agreed that social policy was part of health and safety at work so we got the 48-hour week.
	There is also the use of Article 308 of the treaty of Rome, which the court has decided does not have to be in the course of the operation of the Common Market as it should be, but very much wider. There are many examples of this, so perhaps we are not so mad to be worried about it.

Lord Goodhart: My Lords, I am aware of the case in which the ECJ, somewhat to the surprise of the British Government, applied health and safety rules in order to impose legislation on this country. That is certainly true. However, I am in no way saying that that decision was in any way irrational. It seemed to me to be a perfectly rational decision. It was unexpected by the Government—perhaps they did not receive proper advice from their legal advisers at the time.
	However, there are, of course, varied circumstances. Anybody who has any practice in front of a court is well aware that decisions will be taken which they believe are wrong. That does not mean there is anything improper about that or anything that can, or should, be guarded against. The ECJ is no more perfect in its decisions than the House of Lords in this country, for instance. But that is an entirely different matter and it does not undermine the idea that member states of the EU should accept decisions whether they like them or not.
	I return to Amendment No. 28. It is less harmful than Amendment No. 27, but no more useful. The requirement is to lay before Parliament a report setting out the text of ECJ judgments on provisions of the treaty of Lisbon. It does not really deal with the problem that the noble Lord, Lord Kingsland, raised at the beginning of his speech.
	The reports and decisions of the ECJ would of course be available, without the necessity for a report by the Government, to anyone who wanted to read them. The amendment requires that the report will also contain an assessment of the impact of decisions on the United Kingdom. The United Kingdom is already awash with impact assessments from several different sources. Those who want to believe the Government will do so; those who do not want to believe them will not. The Government may well wish to lay an impact assessment before Parliament, but it is surely a waste of time and money to require that at annual intervals. The amendment ignores the ability of the EU Committee of your Lordships' House and other Select Committees to carry out their own investigations which may be more highly regarded than something produced by the Government.
	Further, the amendment ignores one important fact which is that the treaty of Lisbon will, in effect, cease to exist the moment it comes into force because it consists entirely of amendments to existing treaties. The elements of the Lisbon treaty and of earlier treaties will, therefore, be merged. There are some aspects, such as the Charter of Fundamental Rights, which are plainly introduced by the Lisbon treaty. But in many cases, it will be difficult, if not impossible to decide whether an ECJ judgment is a judgment on amendments introduced by the Lisbon treaty, and civil servants will have to waste time considering that.
	The amendment goes further still and requires judgments of the European Court of Human Rights which affect provisions of the Lisbon treaty—not the treaty as a whole—to be set out in the report alongside the judgments of the ECJ. I cannot imagine what useful purpose could be served by putting that provision in the Bill.
	I cannot believe that the noble Lords whose names are on this amendment take it particularly seriously. It seems to be one which serves no useful purpose and should not be taken any further.

Lord Blackwell: My Lords, I would like to speak briefly in favour of both these amendments which follow on from some issues raised in an amendment I tabled in Committee. In particular, I will address the issue raised in relation to the Charter of Fundamental Rights. Article 1 of that charter offers the protection that the charter cannot be used to extend the ability of the ECJ to find that laws and regulations of the UK are inconsistent with the charter.
	The problem is that it does not specify who has the authority to say whether or not it extends the ability of the ECJ. But it is clear that under this treaty the ECJ would, unless otherwise stated, have that ability to decide whether its decisions extend to the law of the UK. As the committee of this House made clear in its report, there is a strong point of view that the reason the Charter of Fundamental Rights is held not to be important is that it does not extend to the law of the UK because it is based on other international agreements. That is the case being put forward for why it does not have a significant effect. Therefore, it is entirely possible that the ECJ will conclude that any decision it makes based on the Charter of Fundamental Rights does not, by definition, extend to the law of the UK. It is then up to the ECJ how it will interpret the charter, on the assumption that it does reflect the UK laws.
	There is a further problem which is that the introduction to the protocol makes clear, as we have discussed, that the charter contains provisions which are civil and political in character as well as those which are economic and social. So we have the possibility of the ECJ deciding that in interpreting the charter it is not extending the law of the UK and then making its judgment on issues that are political and social.
	You do not have to believe, as the noble Lord, Lord Goodhart, suggested, that the ECJ would be irrational or deliberately misleading to interpret political and social matters in a different way from a UK court. As a result, as the treaty stands, it is perfectly possible that you could have judgments made by the European Court that it claims do not extend UK law and applying its interpretation under the charter of social and political issues. The ECJ is not absolutely a superior court; it is only a superior court on those issues on which it has jurisdiction. The whole question here is whether it has jurisdiction on these issues and interpretations.
	The amendment proposed by the noble Lord, Lord Neill, puts beyond doubt that UK courts should decide on the extent of UK law and whether a measure extends UK law. UK courts should decide on the interpretation of the political and social issues that are covered in the charter. If the Government object to that, they have a difficult case to make the people of the UK.

Lord Lester of Herne Hill: My Lords—

Lord Goldsmith: My Lords, I start with an apology to your Lordships that I was not present at the beginning of the debate and that, up to now, I have not taken any part, although I have followed the debates closely. I am afraid that my new responsibilities have kept me away from the House more than I would have wished. I also apologise to the noble Lord, Lord Neill, because I came in part way through—indeed towards the end of—his speech in which he moved the amendment. I would not rise to speak but for the fact that what I said in a particular speech has been much relied on by him and by the noble Lord, Lord Owen. I thought that I owed it to your Lordships to explain what I was trying to say, in the hope that that will help noble Lords to reach a view on the amendment.
	I arrived just a moment or two before I came into the Chamber and was told that the noble Lord, Lord Neill, was referring to me. Gratified, I rushed into the Chamber, only to find the noble Lord, Lord Kingsland, describing something that I had had something to do with as slovenly, so perhaps I should have stayed away.
	I want to say two or three things that I hope are relevant to your Lordships' considerations. I know that today is not the occasion to go into the history of the charter in any depth. At one stage, it became my special subject, because I had the job, on behalf of this country, of negotiating the charter, before I took office in the Government. There are two critical things about the charter. First, the charter was never intended to be applied directly to member states in dealing with those matters that member states have the competence to deal with. It was always intended to constrain the European Union institutions. The reason was relatively simple: by this stage, the European Union, having started off as an economic union, had gained more and more powers. How could it be, when each member state was constrained by constitutions, or by the Human Rights Act, or by the European Convention on Human Rights, that the European Union institutions—Brussels, if your Lordships will—were not so constrained?
	The European Court of Justice had developed some jurisprudence, but it was not clear just what were the restrictions on the European Union, and that is why the charter particularly says in one of the horizontal articles that it is directed at the institutions and only at the member states when they are implementing Union law, which is really a way of saying that the member states are acting as agents of the Union. It is not therefore a substitute for the Human Rights Act, or whatever the equivalent is in other member states. The noble Lord, Lord Owen, absolutely rightly divined one of the issues in the negotiations for the charter, which was to make sure that we did not create confusion about the different rights by having a competing set of rights alongside those which at the time we were only just bringing into force in the sense of making them justiciable in this country through the Human Rights Act; though they had been laws that affected the Government in this country since the 1950s.
	We also wanted to make it clear that the purpose of the charter was not to give the Union new powers. So it says in terms in the horizontal articles—which lack the poetry of any treaty but which are there specifically to make it clear what the constraints on the charter and the use of the charter are—that it does not extend the power or the mission of the Union.
	Against that background, the Government's view when I was part of them, and, as it happens, my view as well, was that the charter did not create the risks and problems that some attributed to it, because there were clear rules as to its interpretation, because it was clear that it applied not to the member states in their own right but to the European Union and because it was clear that it did not extend the competence of the Union in any respect. That is why in the speech to which noble Lords have made reference, I summarised the position by saying that the United Kingdom's position, like my position, has always been that the charter affirms existing rights, it does not create any new justiciable rights in any member state and does not extend the power of the courts. Moreover, in many cases the charter rights are based on national laws and practices and so they must mirror the extent and content of those national provisions. I give way to the noble Lord.

Lord Campbell of Alloway: My Lords, is what the noble and learned Lord has just said twice put in writing anywhere—that these charter ideas apply only to institutions? Is it anywhere in writing?

Lord Goldsmith: Yes, my Lords, it is. It is one of the horizontal articles. Noble Lords will forgive me that I do not have the text in front of me; the numbers change from time to time. It says that the purpose is to apply to the institutions and only to the member states when they are implementing Union law and not otherwise.
	The purpose was therefore not to add to existing rights or mirror existing rights to apply to the European Union institutions so that they did not trample on our rights in the same way as we accepted this Government should not trample on our rights. Against that background noble Lords may well ask, "Why bother with the protocol? If that is clear, why bother with it?". My answer to that is, "Why bother with it?". It is something that was thought to be helpful, to make it clear. The noble Lord, Lord Waddington, said, "Let's have belt and braces". The purpose of the protocol was to be belt and braces; not that we believed that it was necessary, but it would put the matter beyond doubt.
	I have two difficulties with what has been said. First, I understand from the report I have had—I apologise to the noble Lord, Lord Neill of Bladen, if I have got this wrong—that the noble Lord has relied on what I said as indicating a doubt on my part about the efficacy of the provisions that we put in the charter, or a doubt on my part that the European Court of Justice might go beyond its intended function.

Lord Neill of Bladen: My Lords, the noble and learned Lord was not here, but I expressly referred to the passage in his lecture where he said, "However, going into the treaty negotiations, it was clear that some within the United Kingdom still needed reassurance about the possible effects", and so on. I did not attribute that to the noble and learned Lord; I said that he was reporting that there were those around him who had those fears.

Lord Goldsmith: My Lords, the noble Lord is absolutely right that I was not here. I am much obliged, and I thank him for putting that clearly to me. Certainly that has not been my view. I have seen views reported in many places, from broadsheet newspapers to pamphlets, suggesting all sorts of extraordinary things about the charter that I am absolutely confident it would not achieve. Be that as it may, it was about reassurance, and it was belt and braces. This is the fundamental point that I want to make to your Lordships.
	The difficulty that I have with Amendment No. 27—I shall say nothing about Amendment No. 28—is that if you have belt and braces, what more do you want or can you have? If something is holding your trousers up round the middle and supporting them from the top, I am not sure what else you can have. You have some degree of support that is in mid-air, and with great respect to the noble Lord, that is what his amendment is as well. It does not change the fundamental point of what is the obligation; it seeks to create a remedy where one is not necessary and cannot be created.
	The noble Lord may have referred to this passage, too, and if so I apologise for repeating it. I said in the lecture at page 13 that although I did not believe the protocol was necessary, if the courts in the UK or the ECJ were to disregard the clear provisions in the horizontal articles of the charter, then the protocol would have teeth.
	The point is that the protocol is a treaty which has exactly the same legal effect as any other treaty. Therefore, neither the European Union courts nor the United Kingdom courts could disregard the clear provisions of this treaty, which we call a protocol. They therefore cannot apply exorbitant or extensive interpretations of the charter. They are bound by the terms of the treaty, which is the protocol.
	What would the noble Lord's amendment do? It would do no more than say the same but that some national court had the ability somehow to rule on it. I know that certain people and possibly some noble Lords do not like it but—as the noble Lord, Lord Goodhart, said—the structure of the European Union is such that the European Court of Justice is the final decider of issues within its competence. If the European court sought to take a decision, a national court cannot strike down what the court has said. Therefore, the noble Lord's amendment is the third suspension that is in mid-air. It can have no teeth, but it does not need any. The belt and braces are there to meet the concerns that the noble Lord, Lord Waddington, put forward. For myself, I could not possibly support the amendment moved by the noble Lord, Lord Neill of Bladen.

Lord Lamont of Lerwick: My Lords, the noble and learned Lord said that no national court can overrule the European Court of Justice. Will he comment on the arguments on the German Constitutional Court which was referred to by the noble Lord, Lord Owen, when this was debated in Committee?

Lord Goldsmith: My Lords, I was not present when the noble Lord, Lord Owen, spoke but I am familiar with the jurisprudence of the German Constitutional Court, which found a way through in the Solange cases when it effectively said that it could comply with the rulings of the European Court of Justice as long as its view was that they did not conflict with fundamental principles of German constitutional law. It reached that position and, as far as I am aware, though others with greater knowledge may correct me, it has not had a real problem of conflict between the two. That has to do with the German constitutional position and nothing to do with the structure of the European Union.

Lord Tebbit: My Lords, it is clear to all of us that if the Judicial Committee of this House or, in future, the Supreme Court gives a decision that Parliament feels is wrong and outside its powers, Parliament can put it right. Who has the power to overrule the Supreme Court in Europe in that way?

Lord Goldsmith: My Lords, the point the noble Lord, Lord Tebbit, makes is in no way particular to this debate. It is about the power in Europe—a much broader issue. It is the fact that the member states, which have the power ultimately to set the terms of the relations between member states, have the ability by new treaty agreement to take a different view from that taken by the European Court. It is not as straightforward as Parliament but they can do it. But in my judgment that is not particular to this debate.

Lord Lester of Herne Hill: My Lords, some noble Lords may find arguments by lawyers in this House less interesting than others. I do not wish to prolong this debate more than I need to, and I do not need to very much because I agree with everything that has been said by the noble and learned Lord, Lord Goldsmith, and by my noble friend Lord Goodhart. However, I would like to draw the House's attention to the fact that the Select Committee on the European Union sub-committee on which the noble Lord, Lord Blackwell, and I served looked thoroughly at each provision of the treaty of Lisbon but especially at the charter of fundamental rights. In paragraphs 12.40 to 12.41 and paragraph 12.44 of the report, we summarised our conclusions.
	First, we said that the charter does not confer new rights; the rights referred to are already contained in the international human rights treaties by which all member states of the European Union are bound. Secondly, we found that we could discern no threat to the public interest of the United Kingdom or its citizens in anything contained in the charter, given that it is there to shield, as the noble and learned Lord, Lord Goldsmith, has indicated, our citizens—the peoples of Europe—against the abuse of power by the European institutions. It is therefore to protect our citizens against abuses of power and does nothing more than is already binding on member states, as I have said.
	Thirdly, we looked at the protocol and the terms of the treaty itself. We concluded that it is indeed a question of belt and braces. My own view is that either the braces or the belt were necessary only to give reassurance to noble Lords, such as the noble Lord, Lord Neill of Bladen, who for years has made plain his opposition to the European court's activism, as he sees it. I do not believe that it was strictly necessary, but I am absolutely clear that the way in which it has been negotiated—by a most unslovenly former Attorney-General—was to produce a result that clearly, beyond any argument, prevents the charter "applying to the United Kingdom", to use the words of the noble Lord, Lord Kingsland. I do not know what he meant by that. It does not apply to the United Kingdom in the way in which the European Convention on Human Rights and the European Court of Human Rights apply to the United Kingdom.
	In Amendment No. 27, the court can indeed,
	"find that the laws, regulations or administrative provisions, practices or action of the United Kingdom are inconsistent with"
	human rights in the Strasbourg court of human rights. It does so with the highest aspirations of Winston Churchill, Harold Macmillan and the former head of my chambers, Sir John Foster, at a time when the Conservative Party was the European party within our political system. That is what it does. Its judgments are binding and our judges have a duty to apply the convention rights directly as a result of the Human Rights Act.
	I cannot understand why Amendments Nos. 27 and 28 propose complicated provisions that in the first place violate the supremacy of European Union law for the reasons given by my noble friend Lord Goodhart. They seek to place UK courts above the European Court of Justice in a way that is unlawful under European law.
	Moreover, I do not understand this sudden concern about a possible overreach if the belt and braces do not work. No one has produced even a hypothetical example. The example of the German Constitutional Court is simply an example of a written constitution that states basic rights and freedoms in a way that need to be protected under the German system which had to be reconciled with the paramount law of the European Union. The German Constitutional Court, in its discussions with the European Court of Human Rights, managed to reach a sensible compromise on that question. The fact that there is a now a pending case about all this in Germany is nothing to the point. There has not been a German case I am aware of that would suggest even remotely that the charter could threaten the public interest of this country or its inhabitants.
	As I say, we are to take a decision based on evidence. What was our sub-committee doing week after week? It was taking evidence, going through the charter, the red lines and horizontal effect, in order to see whether the view of the noble and learned Lord, Lord Goldsmith, was correct. We came to the view that it was completely correct and that he had reached the right conclusion. These amendments are not appropriate or necessary.

Lord Slynn of Hadley: My Lords, I apologise that I may have rather less volume of voice than I have conviction. Despite the onslaught of the noble Lord, Lord Waddington, I do not resile for one moment from what I said last time about the general principles which apply to the decisions and supremacy of the European Court of Justice. That is relevant to paragraphs 3, 4 and 5 of the amendment proposed by the noble Lord, Lord Neill of Bladen.
	From the day the European Community was founded and member states joined—one by one or three by three—it was fully accepted that there had to be uniformity in its law. The only way to achieve that was to give primacy to Community law. The European Court fully endorsed those principles adopted by the member states. Lawyers and judges not just in the European Court but throughout the Community have fully accepted this concept of the primacy of Community law. There is no possible justification or reason for departing from it today. Certainly, this treaty does not seek to do so.
	I will deal briefly, because of the time, with the two important points which the noble Lord, Lord Neill, raised. First, he spoke about the common foreign and security policy. When the pillars of the community were set up, one pillar was confined to the common foreign and security policy. It was accepted universally that that should not be subject to review by the European Court of Justice. That has not been challenged. Every time it was suggested that the pillars should be changed, that the Court should have more jurisdiction over justice and home affairs, nobody suggested that the foreign policy should change.
	The present Treaty on the Functioning of the European Union makes it absolutely plain that the European Union Court of Justice shall not have jurisdiction over provisions relating to the common foreign and security policy, nor to Acts adopted on the basis of those provisions. Yet it introduces in Article 275 that the Court shall have jurisdiction to deal with certain matters, particularly those which review the legality of decisions providing for restrictive measures against natural or legal persons—this is important and justified. I will not read Article 275 but that is an important and in no way restrictive position. The provisions included in the treaty follow what has happened and do not violate the principles we have observed today or which we should continue to observe. I regret that I may be totally inaudible or at the least extremely irritating in suffering either from a bug picked up in an airplane or from some cold from foreign parts.
	Secondly, the Charter of Fundamental Rights has been severely criticised for the way in which it happens. It has been made plain in the charter that its underlying rights include charter safeguards. The general articles are of great importance. That the charter is addressed primarily to the Union institutions and affects member states only to the extent that they implement European law is important. I will not say more about that. It is quite plain that the charter is not intended to extend existing rights. Those explanations will lead the court to follow the principles which are intended. It is important to remember in Article 1(8) of the treaty of Lisbon that,
	"the Charter shall not extend in any way the competences of the Union as defined in the Treaties".
	The protocol, which has the same force as the treaties, is clear. The European Court of Justice not only cannot ignore it but also must enforce it. It cannot strike it down. The general principle we have followed should apply equally. I am being much briefer than I intended to be.
	On Amendment 28, your Lordships' House and others already have all the reports of the European Court of Justice and the European Court of Human Rights. The Government intend, I understand, a statement of what has been achieved by the European Court and Court of Human Rights—it is already available in many other forms. It is a matter for the Government and Lord President to decide whether what is there is enough or whether we really need more, as proposed.
	Finally, I remind your Lordships that the European Community is now to accede to the European Convention on Human Rights. That imposes obligations on the European Union and on the court. It will likely have the effect of restricting some of these exorbitant ideas which have been passed around, that the European Court is going to run amok and do some crazy things in order to defeat the objectives of the charter. It will not do so and what is in our present treaty is an adequate way of dealing with the matter. Again, I apologise. I thank your Lordships for your patience and hope for some audibility.

Baroness Ashton of Upholland: My Lords, it is a great privilege to follow the noble and learned Lord, Lord Slynn, who has demonstrated the strength of his convictions on this issue and his tenacity by speaking with a voice that I know is just returning. When I attempted to speak to him last week, he had no voice at all. I know the House wishes him well and hopes that his voice will return. To quote the noble Lord, Lord Kingsland, I am going to be telegraphic in my remarks because I do not need to repeat a lot that has been said and could not do so with the eloquence of my noble and learned friend Lord Goldsmith, the noble Lords, Lord Goodhart and Lord Lester, and the noble and learned Lord, Lord Slynn, with whose remarks I would like to associate myself and the Government. I am not going to try to cover what they have covered so adequately. I am also mindful of the time and that noble Lords will wish to reach a conclusion on this.
	Amendment No. 27 covers common foreign and security policy and the Charter of Fundamental Rights. There are very clear reasons, which noble Lords have eloquently set out, why the Government have put in place the measures that they have. In doing so, the Government wished to reassure this House, another place and beyond, and to make clear what does and does not apply. We have made it clear that the European Court of Justice does not have jurisdiction over common foreign and security policy. There are two tiny exceptions to that, which I laid out fully in Committee, about policing the boundary between the two. They are that under the new treaty, the court has to protect the distinct character of the common foreign and security policy against encroachment from non-common foreign and security policy provisions, as well as vice versa, and the sanctions that apply to individuals that could come about under this. Beyond that, the European Court of Justice does not have jurisdiction in the way about which noble Lords have expressed concern.
	The noble Lord, Lord Kingsland, was worried about the preamble,
	"without prejudice to other obligations"
	in the EU treaty. That is a misunderstanding about how the protocol works. Any judgment given on the basis of the charter cannot extend the ability of the European Court of Justice to affect the law of the United Kingdom. If the European Court of Justice did the completely unthinkable—we are back to the belt, braces and suspension in midair point—and ignored all the other safeguards in the charter and interpreted European Union law for other member states—a concern that was raised—using the charter to create new rights, it cannot affect our law. That is clear from Article 1.1 of the protocol, which states:
	"The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms".
	That is in the protocol, and the protocol stands.
	The noble Lord, Lord Owen, previously raised the issue of the president of the European Council and the fear of seeping through the president into a jurisdiction. The European Court of Justice has jurisdiction over measures of the European Council with legal effects. It does not have jurisdiction over the political discussions or conclusions of the Council. Were the European Council to adopt legal measures relating to common foreign and security policies, which are extremely rare, they are clearly covered by what I describe as the "carve out" under Article 275. They would relate to the CFSP provisions, and so have jurisdiction on the president. If noble Lords refer to the treaty and look at what has been said, it is clear that there is no need for any additional provision.
	My noble and learned friend has gone through the issues around the charter in great detail. I am not going to try to set them out again because noble Lords have listened very intently. My noble and learned friend referred to the interpretation and application of the treaty, but he did not have the reference in front of him. It states:
	"The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law".
	That was the particular point to which my noble and learned friend was referring.
	I am not going to go into all the details about what has been covered on the charter and the safeguards that have been put in place, not least due to the incredible work of my noble and learned friend in negotiating that position. Suffice it to say that the issue that underpins Amendment No. 27 is the primacy of European Union law and the role of the European Court of Justice. If you sign up to a club—which, in a sense, we have done—with 27 member states, you also sign up to the referees that you put in place. The European Court of Justice is in a sense a referee. That is its function. Noble Lords may not like it and may wish that it did not exist, but that is what it does. Its work is important in making sure that the implementation and the work of the European Union is consistent. We have benefited from that. Noble Lords can point to many cases where the European Court of Justice has demonstrated that to our benefit. That is what underpins this amendment and is why the Government will not accept it.
	I shall turn briefly to Amendment No. 28. So far, we have asked for 23 reports during our deliberations. I am mindful of not bombarding noble Lords with further information. In speaking to this amendment, the noble Lord, Lord Kingsland, referred to the Constitution Committee report, and I refer to the response to that report that the Government have already published. We have already committed to ensuring that a copy of the European Court of Justice's annual report is deposited in the Libraries of your Lordships' House and another place. We have also committed to providing explanatory memoranda on all judgments during the preceding year in which we were a party, where we intervened or where we submitted observations. Just to make sure that noble Lords understand the context of that, it will be considerable number of cases. Of the cases lodged with European Court of Justice in 2007, we intervened or submitted observations in just over 50, and of cases lodged with the Court of First Instance, we intervened in just under 20 cases. We believe that by putting in the Libraries the European Court of Justice's annual report and memoranda on everything where the UK has had an interest, we will fulfil what was behind the Constitution Committee's requirement and request to us. That is a much better option than yet another amendment that takes us into another report. I hope that the noble Lord, Lord Kingsland, will agree.
	We already work closely with the Joint Committee on Human Rights. We think that that is the best way to continue our work rather than setting up a parallel process replicating what is already done. That is all I am going to say. Everything that could have been said in this debate has very usefully been said. I am extremely grateful to noble Lords who have spoken. I hope the noble Lord will withdraw his amendment.

Lord Neill of Bladen: My Lords, I shall be extremely brief. I was surprised to hear the noble Baroness say that full protection has been achieved by the first sentence of Article 1 of the protocol. That seems a strange statement in view of the fact that the horizontal articles were not good enough, but something that says almost exactly the same thing, but introduces the word "UK" gives complete protection. That is among the answers she gave. We heard the noble and learned Lord, Lord Slynn, will listen to his advice and bear in mind the respect we owe to his speech.
	The noble Lord, Lord Goodhart, said that we cannot legislate on the basis that the ECJ will err, but that is precisely what the Government did in calling for the protocol. There were references to paranoia. I shall not demean the argument by answering them. I do not believe that the noble and learned Lord, Lord Goldsmith, answered the passage I read from his speech saying that the protocol would bite in the event that this extraordinary thing happened. We never really had an answer to that. His position is probably that it cannot happen here. That is all I wish to say. We have had arguments both ways, and I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 27) shall be agreed to?
	Their Lordships divided: Contents, 172; Not-Contents, 188.

Resolved in the negative, and amendment disagreed to accordingly.
	[Amendment No. 28 not moved.]

Lord Bach: My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, I suggest that the Report stage begin again not before 8.42pm.

Moved accordingly, and, on Question, Motion agreed to.

Health: Obesity During Pregnancy

Baroness Rendell of Babergh: asked Her Majesty's Government how they propose to combat the increasing threat to women's health of obesity during pregnancy and childbirth.
	My Lords, scarcely a day passes without warnings about obesity appearing in the media: how, in its various manifestations—obese, morbidly obese and super-morbidly obese—it endangers the nation's health and is on the increase. Obesity in pregnant women is seldom referred to, although it has been called the biggest threat to women during pregnancy. In the Government's large, tripartite obesity document, Foresight, I was unable to find any specific reference to obesity and pregnancy.
	The problems are serious. Midwives and obstetricians have been aware of them and have been dealing with them for several years. Recently, things have changed. Due to the current obesity epidemic, if such it can be called, an increasing number of extremely overweight women are becoming pregnant. The rate of that increase is alarming. In 1980, no more than 8 per cent of women in England were classified as obese and the word itself was seldom used. If we heard it, a good many of us would not have known what it meant. That would be laughable today, for the prevalence of obesity had nearly trebled to 21 per cent of women by 1998 and current figures suggest that it may have reached 25 per cent. It is estimated that that figure will have increased to 50 per cent by 2050. It is clear that obesity is one of the greatest public health challenges facing healthcare professionals and that this trend must be reversed.
	Body mass index is measured by dividing an individual's weight in kilos by height in metres and then dividing the result by height in metres again. An ideal weight for women is between 18 and 25. The Confidential Enquiry into Maternal Deaths of 2004 reported that 35 per cent of women who died were identified as clinically obese, with a body mass index of 30 or more, while a body mass index of more than 40 indicates morbid obesity. The latest Confidential Enquiry, that of 2007, shows that out of the 295 women who died 119 were overweight and 64 of those were morbidly or super-morbidly obese. In 30 per cent of women who experienced a stillbirth or perinatal death, the maternal BMI was recorded at more than 30.
	Maternal obesity during pregnancy is associated with increased complications for both mother and baby. The risks to mother include miscarriage, gestational diabetes, pre-eclampsia, hypertension, thromboembolism, post-caesarean wound infection, prolonged labour, postpartum haemorrhage and many others. The risks to the baby may be child adiposity, early neonatal death, intrauterine death and hypoglycaemia. In adults, obesity increases the likelihood of type-2 gestational diabetes dramatically—by up to 80 times that of the non-obese. Although this will disappear after pregnancy, it may be a precursor of developing diabetes in later life, which can be a cause of high blood pressure and coronary heart disease. Obesity is also associated with less serious but debilitating conditions such as shortness of breath, back pain and reduced mobility. In some cases, midwives find taking specimens from and conducting examinations of obese women complicated if not impossible due to their excess weight.
	Pre-eclampsia has increased nearly fivefold in morbidly obese women compared with normal-weight women. The risk of caesarean section has increased threefold and instrumental deliveries have increased by 34 per cent. In comparison with normal-weight women, there is evidence that maternal obesity is also associated with foetal abnormalities, particularly spina bifida and heart defects. It appears that women who were obese prior to pregnancy are more likely to have a baby large for gestational age. Generally speaking, obese parents have obese children. The odds of an obese one to two year-old child being obese as an adult is one in three.
	A survey carried out in 2005 identified that maternal obesity resulted in, among other defects, a twofold increase in stillbirths and neonatal death compared to birth outcomes in women of normal body weight. Excessive weight gain in pregnancy is an independent risk factor for caesarean birth; it has been estimated that a significant number of caesarean sections could be avoided each year if women's weight did not exceed the level recommended by the Institute of Medicine.
	Morbidly obese women—those with a body mass index of 40-plus—have risks for complications that are significantly greater. It has been found that those women are at risk of prolonged labour, gestational diabetes, pre-eclampsia, placental abruption, surgical birth, postpartum endometritus and prolonged postpartum stays in hospital. Also, larger women often have restricted mobility and may not be able to get into a position ideal for a safe delivery.
	We also have to consider, although it may be a secondary consideration, the added costs to the NHS associated with the safe management of obese women in pregnancy and the resources needed to achieve that, as specialist equipment may be required. For instance, serial scans may be required to assess foetal growth, foetal monitoring by an external transducer may be needed and a foetal scalp electrode may be applied if the foetal heart is impossible to record. Delivery may have to take place in a consultant unit or, if an emergency caesarean must be carried out, two obstetricians are required to be present.
	It has been suggested that pregnancy is not a time to lose weight. However, antenatal booking may be the ideal time to discuss diet with women who have been identified as obese or morbidly obese, as well as the conditions in pregnancy that may result from obesity. Midwives say that the myth that the weight should not be lost during pregnancy should be dispelled. However, this is not the place to go into causes of obesity or weight-loss regimens. The media instruct women in these procedures almost every day and it is hard to believe that anyone who has a problem can be unaware of them. A recent proposal, which should meet with derision, is that of paying people to lose weight, which has been the subject of television programmes shown in the past two weeks. Contrary to popular belief among the thin, overweight and obese women are well aware of their obesity and many, far from being complacent in the well known image of the jolly fat person, are made miserable by their condition.
	Unfortunately there is a growing trend to accept overweight verging on obesity as the norm—the condition of what the media call real women—while leanness must be attributed to excessive dieting, if not anorexia. This attitude may be seen as encouraging obesity in pregnancy where eating for two as a principle, if old-fashioned, is still a current belief. The fact remains that the Confidential Enquiry into Maternal and Child Health in 2007 estimated that at least 360 existing children and 160 live newborns lost their mother. One hundred and nineteen of the women who died were classified as obese. It is deeply distressing to contemplate these orphaned children who were deprived of that unique figure in everyone's life, not through disease in its usual sense but through a failure to be given dietary and exercise help before and during pregnancy.
	However, although gestational obesity is a growing problem and presents severe risks to both mother and baby, currently there is no national guidance for midwives on how to care for this increasing number of women. Women are repeatedly told not to drink alcohol while pregnant, or to drink it in very small quantities. It is now taken for granted that they should not smoke while pregnant, but obesity is not subject to similar condemnation, nor is a woman warned that she may be carrying too much weight for a safe pregnancy and satisfactory delivery. Something on the French model might be considered, where women's health and weight are monitored throughout the pregnancy. Does the Minister believe that the Government should give guidance to midwives nationally and that attention should be focused by health professionals on young women who are obese prior to their becoming pregnant?

Baroness Thomas of Walliswood: My Lords, it is always stimulating to listen to the speeches of the noble Baroness, Lady Rendell, whose dedication to the physical well-being of women is well known and highly respected in this House.
	The subject of today's debate is of real relevance at a time when there is wide general concern at the growing number of people who are overweight and growing evidence of the dangers of obesity to both mothers and their babies during confinement in particular. Interestingly, an article was published in G2 today about the growing number of large babies in general and the problems that they can suffer during the birth itself. However, that is probably beyond the bounds of today's debate, because although recent research indicates that obesity in pregnancy is linked with the high birth weight of the baby, it seems likely that other factors affect birth weight, such as the height of parents, which are rather beyond today's subject.
	The report to which the noble Baroness, Lady Rendell, referred clearly indicates a link between a mother's high body weight and a number of serious problems, which the noble Baroness has rehearsed for us already. One of the effects has been increased costs to the NHS in the number of days in hospital during pregnancy, in a fivefold increase in the costs of neonatal care and in the increased likelihood of the child being admitted into a neonatal intensive care unit. Worryingly, no single clinical guideline is available in the UK on the best way of dealing with these problems, although work is being done and evidence collected on the best way to handle the problem medically. I join the noble Baroness in asking the Minister whether such a guideline is currently being prepared.
	Overweight, or a high body mass index, is caused by factors well beyond the power of doctors alone to deal with. Home Office figures published this year show a strong relationship between obesity and social class. I suspect that that is really a relationship between being better off and being less well off. In 2006, about a fifth of the richest quintile of women was obese compared with a third of the poorest quintile. Furthermore, four times as many of the poorest women are morbidly obese compared with their richer sisters. These differences seem to be associated with a low-activity lifestyle and a less healthy diet among poorer women when compared with the wealthy. These trends begin in childhood, with lower levels of physical activity among girls than boys, particularly after the age of nine, and fewer children of poorer families getting the desired five portions of fruit and vegetables daily.
	Given the costs to the individual woman and to the NHS of excess weight, what can the Government or individual women do about it? Perhaps better advice to women about the risks to themselves and their babies from overweight would be useful. I had my babies when free orange juice was still available from baby clinics; I certainly listened to what the nurses had to say and tried to follow their advice. The fact that my three children weighed 9 pounds 10 ounces, 8 pounds and 8 ounces and 8 pounds respectively might suggest to some that I did not listen hard enough, although they all grew up perfectly normal.
	In an age when mothers of children at school can encourage them to refuse healthy school lunches and push burgers and fries through the schoolyard fence to keep them from starving, we need to do more. Clearly, educating children about health and exercise and healthy eating from their earliest years would be a start. As anyone knows who has frequently visited five and six year-olds in their classrooms, one can teach a child almost anything at that age, always provided that the teaching matches the child's understanding. Doing some of this on days or at times when parents can be present would be even better.
	A programme of age-related teaching financed by the Government might be cost-effective, given the high costs to the NHS of obesity in women, to say nothing of the costs to the women themselves. A greater emphasis on PE and games would clearly be beneficial, as the gap between the activity levels starts early and is widest in the children of the poorest families. There seems to be a real difficulty in that girls in general seem to be turned off team games from quite an early age, but the Government are making a good deal of effort, in the context of the Olympic Games, to encourage more participation in sport of all kinds. Perhaps less concentration on team games and more encouragement of swimming—very good for the figure—and gymnastics, dance or aerobics in all-girl contexts would be more attractive to girls than having to exercise in the school playground or on the hockey pitch with the boys looking on and jeering.
	Of course, I understand that there are forces working against such ambitions, not least the increasingly early sexualisation of young girls as a result of high-pressure sales techniques. We also need to be concerned about the understanding of women who are now in their childbearing years of the malign effects of being seriously overweight on their efforts to carry and give birth to a healthy baby. Do the Government ever consider getting this sort of message across in women's magazines, without anyone ever realising that it is a government message of course? The medium really can be the message if handled tactfully.
	I do not have anything more to contribute to the debate in any medical sense, which is why I have concentrated on what one might call the social aspects of some of this. It is extraordinary that, in an education system that began by teaching children how to look after their babies, we have got so far away from practical education of that kind and from an interest in teaching children how to look after themselves physically as well as mentally, and that we are suffering from a ridiculous and dangerous epidemic of obesity that is causing harm both to mothers and to their children.

Lord Patel: My Lords, I thank the noble Baroness, Lady Rendell, for securing this debate. For a minute, I thought that she was going to ask us all to declare our BMI before we speak. I would not like to admit that mine is approaching that crucial number. I hope that I will be able to keep it under control.
	We all know that obesity in our country is of epidemic proportions—more so than in any other western European country. What is worse is the fact that childhood and adolescent obesity is on the increase, with nearly 30 per cent of children and adolescents classified as obese. In the longer term, that will have its effect in all areas of healthcare, not just in pregnancy. What is now happening in terms of maternal perinatal mortality and morbidity will have its effect in the longer term.
	The proverb, "You are what you eat"—and maybe even drink—is familiar to all of us. What is less well known is that it is also true that you are what your parents, and even your grandparents, ate, which is based on the established science of development biology. As we understand more about the genes we inherit and the environment in which we live, and the increased understanding of foetal health and its relation to parental diet, we are beginning to see the link between a predisposition to certain adulthood diseases, such as cardiovascular disease, cancer, diabetes and obesity, as well as to foetal development and maternal obesity. The roots of these diseases are laid down before birth. There is a strong co-relation between maternal insulin sensitivity in late pregnancy, and birth weight and fat-free mass in the body.
	So what does all that mean? There is a strong link between obesity in pregnancy and weight at birth, and subsequent obesity in children. In mothers with a BMI of more than 30 kilograms per square metre in the first three months of pregnancy, the prevalence of childhood obesity—that is, a more than 95th percentile weight at the ages of two, three and four—in one study was 15, 20 and 24 per cent. The rise in babies born large for gestational age—with a birth weight of more than four and a half kilos—in the most part is related to maternal obesity and diet, which will then lead to a rise in adulthood diseases.
	These are the long-term effects of maternal obesity. The immediate effect is an increased maternal and perinatal mortality, which the noble Baroness, Lady Rendell, has already mentioned. That may well be associated with higher maternal mortality in the United Kingdom than in other western European countries. Let us admit that we now have a rising maternal mortality rate. Fifty per cent of deaths reported in the confidential report on maternal deaths and nearly 30 per cent of perinatal deaths are associated with obesity in the mother. Add to this the fact that the prevalence of obesity is higher in lower socio-economic groups, which is already a significant factor in maternal and perinatal deaths, and we have the reason for this increase in numbers. Complications such as pulmonary embolus, pre-eclamptic toxaemia, pre-term labour, small-for-gestational age babies—that is, small babies—are also higher in obese mothers.
	Care of obese mothers requires personalised care from experienced staff and the interpretation of tests, both antenatally and intrapartum, is problematic. The incidence of surgical intervention, such as caesarean sections, is high and fraught with difficulties. I still remember the case of a very large lady on whom I was called to do an emergency caesarean section because of foetal distress. The foetus was not being oxygenated well. The consultant has to deal with the problem. After six hours of surgery, which normally takes 40 minutes, and 25 pints of blood, I was exhausted and my hair turned the colour it is now. In obese women, any surgery is fraught with difficulties. The Minister may be able to use his laparoscope or his robot, but I cannot use those for a caesarean section.
	Anaesthesia and post-operative care are also problematic, as is neonatal resuscitation. Babies born to gestationally diabetic mothers, which obese mothers often are, mostly consist of fat and water, and have difficulties in the neonatal period.
	What do we need to do? What should the Government's policy be? First, there should be a better, continuous strategy for the prevention of obesity in children and adolescents, particularly young girls, which is rising. Secondly, with the incidence of obese pregnant women attending clinics in some maternity units as high as 22 per cent, there should be better resourced maternity units. They need equipment, such as bigger blood pressure cuffs, which noble Lords may think are easy to get; stronger operating theatres; and, importantly, skilled, experienced staff, particularly midwives. The Government's proposal to increase the number of midwives by 4,000 is good, but what steps are being taken to make that happen? We need more midwives to enter not just education but also to practise.
	The increasing incidence of obesity in pregnancy will be a sign of a failed strategy for reducing childhood and adolescent obesity, and will lead to greater demands on healthcare in the future. Under-resourced maternity care will lead to an increase in maternal and perinatal deaths and disability. Maternal obesity is a serious problem. Prevention is key in the long term. In the short term, we need better resourced maternity units.
	My Lords, I am sure that we are all most grateful to the noble Baroness, Lady Rendell of Babergh, for having secured this debate. It is very timely as we see obesity and morbid obesity increasingly account for maternal and child mortality, and morbidity in pregnancy and childbirth, as has already been outlined. In preparing for this debate, my literature search identified a series of papers, 14 of which were very high-quality studies, and the consistency of their findings rang out loud and clear. The complications for mother and baby are worse the fatter the woman is. Even when you exclude women with diabetes and high blood pressure, the risk from obesity itself is evident, stark and statistically significant in all the studies.
	The 2000-02 report, Why Mothers Die, found that 35 per cent of all women who died were obese—a figure that has already been alluded to by the noble Baroness, Lady Rendell. The problems can be considered under various phases of the pregnancy and birth. Pre-existing obesity risks adverse outcomes in pregnancy. In early pregnancy, there is an increased risk of spontaneous miscarriage and congenital abnormalities. These include cardiac problems in the baby; omphalocoele, which is when the abdominal wall does not close and the baby's guts are exposed; and spina bifida.
	As pregnancy progresses, the risks to the baby are of oversized organs, which can lead later to obstructed labour, and of premature labour and of stillbirth, which is sometimes because the placenta comes away with potentially massive haemorrhage. These mothers are at risk of high blood pressure, pre-eclampsia and diabetes in pregnancy, all of which put the placenta at risk. In the morbidly obese women, the babies are at risk of being dangerously small through placental insufficiency, but for most obese women, the babies are dangerously large, which applies right across the board.
	Some women are so obese that they have sleep apnoea. They literally cannot breathe properly when they are asleep. The mother is more likely to go into labour at the wrong time, either prematurely or post-term. When in labour, if the head is delivered, the shoulders are at risk of getting stuck and in the process of delivery the baby's collar bone is at risk of fracturing. The fragments can go through the brachial plexus, which is the main nerve trunk to the arm, and the baby has a paralysed arm. The baby is much more likely to be severely distressed in labour in obese women and after delivery may need resuscitation, which is hard because of the metabolic disturbances that the baby has had.
	Caesarean sections certainly are not the answer. Anaesthesia is so hard in these women that they may not ever have adequate sedation because the fat just soaks up the anaesthetic agents. They are extremely difficult to intubate and then they are very hard work to ventilate adequately to maintain oxygen levels to the brain. It is hard to put in an epidural because none of the landmarks are there to guide safe insertion and surgery is complicated by this apron of fat, as has already been alluded to. The wound is then more likely to break down. The women are at risk of genital tract and urinary tract infection and of post-partum haemorrhage. Tragically, the main cause of death in women is thromboembolism when a deep vein thrombosis breaks off as a pulmonary embolus and blocks the blood supply to the lungs, and the woman dies.
	The other problem for the baby is that these women are less likely to breastfeed, so there are ongoing nutritional problems in the infant. Should the women have a catastrophic event, resuscitation is harder because of the obesity. Indeed, midwives have said that even finding beds strong enough to hold some of these women is very difficult. Monitoring the foetus during labour is extremely difficult, because normal pieces of equipment to monitor the foetal heart cannot be attached easily. There is also the problem of back injuries and strain if these women have to be moved or lifted.
	In going through the literature, I also found an interesting study from work done on animals. Maternal junk food diets during pregnancy and lactation play a role in predisposing the offspring to obesity. This food alters the metabolism of the offspring. Giving the mother junk food has a subsequent lifelong damaging effect on the offspring.
	We have before us the Health and Social Care Bill, which features the grant in pregnancy. It is a unique opportunity to engage women in education on health issues, on issues around breastfeeding and on parenting. There is another aspect that we must not ignore. Quite a few morbidly obese women who present are like that because they are desperately unhappy and have been abused. We should use this opportunity to screen for abuse women and other members of their family. There is also the potential problem of substance abuse—particularly of alcohol, but of other substances as well.
	Severe obesity is not a reason to chastise a woman, because it may be a pointer to there being a great deal of dysfunction in many aspects of her life. I hope that the Government will use the Health and Social Care Bill to take forward positive health education for these women. When you are giving them a grant, you have a captive audience.

Baroness Tonge: My Lords, I, too, congratulate the noble Baroness on bringing this matter to the attention of the House. I suspect a lot of things that need to be said have been said. However, I have a few things to add. Of 12.95 maternal deaths per 100,000 births in this country, nearly half—six—are due to obesity in some form. That is disgraceful in a civilised society, with a National Health Service that gives treatment free at the point of need.
	Let me deal first with women who become obese during pregnancy. This happens—women of normal weight can grow obese during pregnancy, for emotional or feeding reasons, or perhaps because they have given up smoking. No one has mentioned the link between women smoking and keeping their weight down. This is important, particularly to young women. In one of my pregnancies, for no reason that was ever explained to me, I could be described at term only as a gasometer on legs, because I had put on so much weight. Thankfully, a lot of it—though not all—has disappeared since. However, it does happen, and it can be very dangerous for the woman and her baby. I was fortunate: it had no consequences for me or my baby.
	Obesity can also cause reduced fertility, and not just because of the physical difficulty of getting pregnant. I have seen many women who get pregnant once they have addressed their diet and begun to lose weight. The noble Baronesses, Lady Rendell and Lady Finlay, and the noble Lord, Lord Patel, have described the many complications at birth, including the damage to the baby at delivery. I read in a paper published about two years ago that there is also a higher incidence of foetal abnormalities in women who are obese when they get pregnant. Diabetes is an obvious complication, along with high blood pressure and pre-eclampsia. There are also enormous problems for the midwives and staff who deal with obese patients. This should not be played down: it is very dangerous. If doctors, nurses and midwives find you difficult to handle, you will not have as good an outcome as if you were easier to handle. I think that sometimes people do not realise that. They think that once they get to the National Health Service, all problems will fade away and the doctor will be able to do the right thing and make them better.
	The causes are the same as among the general population. Poor education and deprived backgrounds are major factors in obesity. Girls in school are given sex education, and some relationship education if they are lucky. They are taught about the risks of contracting infections. But what about the risks of obesity in pregnancy and the importance of keeping themselves healthy and fit if they want in future to have healthy and fit babies? Do we address that enough when we educate our girls?
	I have mentioned in previous debates the confusion over health messages. Yes, people should give up smoking. However, if patients then put on an enormous amount of weight, you have to address that with them as well, because it can be very difficult. Yes, they must give up drinking, but if their only solace is drinking, will they start overeating to replace the drinking? People with addictive personalities often have to do something to stave off their unhappiness, depression or misery. Treatment is often much more complicated than simply telling them to stop doing something.
	Breastfeeding has been mentioned. It is terribly important that babies should be breastfed from birth, because that leads to much better health as the baby moves into childhood. Habits formed during babyhood and childhood are terribly important: noble Lords do not have to be reminded of that.
	There is sometimes an element of the Government not quite joining up in this area. We hear a lot about joined-up government, but since introducing massive choice in primary schools so that parents could choose where they wanted to send their children, the tendency has been to choose the school far enough away to require using a car rather than the school around the corner. So many children are now driven to school either because it is too far to walk, because their mothers have been encouraged back to work and they are being dropped off on the way, or because mothers are terrified by all the media attention on child abduction and child abuse. Children do not get that natural exercise at the beginning and end of the day which is so important to their development. With my children, being able to walk to school by themselves once they were in primary school was part of their social development and education. They had to be able to do it. So few children have that nowadays, so they are lacking in exercise.
	I know that the Government are trying to address the problem, but the sale of school playing fields and the dumbing down of compulsory sports in the curriculum has resulted in a tendency for both girls and boys to get fatter because not as much exercise is built into the school day. Government departments need to get together and carry out an audit on what effect this will have in terms of people's health as well as their education.
	We hear a lot about the information on food packaging, but sometimes it is difficult to understand, especially if someone has had a poor education. It is hard to work out what all those minute figures mean, even if you can read them. I can never find my specs and I am always in too much of a hurry.
	My noble friend Lady Thomas made an important point. We should remember the days when we had community clinics. We had baby clinics, health visitors, free orange juice and the opportunity for mothers to chat and to speak to community nurses. They were meeting points for young mothers to share information about their babies and receive the correct advice. When the noble Lord, Lord Darzi, responds to the debate, I would like him to promise me that if and when his polyclinics are set up—I have to confess that I am a fan of such clinics for some areas—please, please can we have preventive and community health in order to provide sensible advice for mothers, the elderly and people with long-term diseases. That is what we are lacking now. A lot of GPs have tried to provide those services, which used to be available in community clinics, but many do not. They are particularly important in deprived areas. For a long time I worked in Southall in Middlesex where such clinics were essential to the community. I hope that the Minister will address this point and promise that those services will be brought back.
	My last word is this. Please can we get it across to people that the National Health Service is there to help us when we are sick. It is not there to allow us to abuse our bodies and do what we like, just so that the health service can pick up the tab and make us better, whether ourselves or our children. I look forward to the Minister's reply.

Earl Howe: My Lords, the topic of obesity is by no means a new one in your Lordships' House, but the noble Baroness, Lady Rendell, has turned our minds to an extremely important aspect of it. It is also one on which government pronouncements have been comparatively few. I congratulate the noble Baroness on tabling her Question and for the compelling way in which she spoke to it.
	When we look at the statistics for maternal deaths in this country, I think it is important that we do not overplay the scale of the problem. The UK has one of the lowest rates of maternal deaths in the world, but the death rate is beginning to rise. It is about 40 per cent higher than it was 20 years ago, and for the first time deaths from cardiac causes, which are often linked to obesity, are the commonest type of death among women in pregnancy and childbirth. If a woman is obese when she is pregnant, she dramatically increases her risk of death or serious complications in childbirth. The CEMACH report of last December described obesity as,
	"one of the greatest and growing overall threats to the childbearing population of the UK".
	That is surely a wake-up call.
	The threats are not only the ones directly associated with obesity, like sepsis and blood clots. They also lie in the fact that women from less affluent backgrounds are more likely to be in poor overall health and less likely to have regular contact with maternity services. The evidence of risk is quite clear, and we have heard about it from all noble Lords. An obese woman is three times more likely to miscarry, two or three times more likely to suffer from pre-eclampsia and twice as likely to need a caesarean section. She runs a fourfold risk of having gestational diabetes.
	When we look at the health of the child, there is an equally worrying picture. Obesity in the mother is associated with an increased risk of her baby being born unusually large, which in turn makes it more likely that the child will suffer injury or need intensive care. As the noble Baroness, Lady Finlay, said, obese mothers are less likely to breastfeed, which often leads to babies gaining weight more rapidly than they otherwise would. The risk of spina bifida is multiplied threefold. In the longer term, there is evidence that children of obese mothers may be pre-programmed for increased obesity and impaired cardiovascular health when they are older, which tends to suggest that the problem, as the noble Lord, Lord Patel, pointed out, could, in this sense, be self-perpetuating.
	The trouble is that, as so often with health matters, the messages for women are not completely straightforward. Obesity may be harmful, but having a lower than normal body mass index is equally bad. Underweight women are subject to pregnancy-related complications such as giving birth prematurely and having a child of low birth weight. So it is important to be balanced in pitching any public health messages in this area.
	However, even this is far from easy because it is not simply a case of saying to women that before they think of becoming pregnant they should aim for an optimum weight. It has been found that, for women who have already had a child, putting on or taking off weight between pregnancies carries its own quite considerable health risks. Increases in the body mass index of only one or two units were associated with significantly increased rates of pre-eclampsia, gestational diabetes and hypertension, and also led to babies who were excessively large. An increase of more than three body mass index units significantly increased the rate of stillbirth and perinatal complications, quite independently of whether the woman was overweight or not. Equally, women who lost five or more body mass index units between pregnancies were found to have a higher risk of giving birth prematurely than women whose weight remained stable or who gained weight. So gaining or losing a lot of weight between pregnancies poses its own serious risks to a mother's health and to that of her baby. That means that getting to, and keeping to, a normal weight before, during and after pregnancy is, ideally, what women should aim for.
	What we know about the increased risk factors for women in pregnancy does, I think, have some serious implications for IVF services. It has been recognised for many years that obesity reduces the chances of successfully achieving conception. But if obesity also adds to risk, then it is questionable whether public funds should be spent in cases where the risk factors are very obviously present. Currently, NICE advises that patients should ideally have a BMI of between 19 and 30 when seeking IVF. However, about 18 months ago, doctors in the British Fertility Society recommended that women with a BMI of 36 or more should be disqualified from treatment altogether, and women with a BMI of between 30 and 36 should be accepted only if they engage in a regime of diet and exercise. I should be glad if the Minister would comment on that.
	At the moment, there are no national eligibility criteria: it is up to individual PCTs to set their own limits and restrictions. The result really is, I am afraid, reminiscent of a lottery, and at the very least there must be a case for basing the criteria on the clinical evidence and, at the same time, making them much more transparent. In New Zealand, where strict eligibility limits have been applied based on a woman's BMI index, the results have, I understand, been encouraging, because women are made to take control of their own health.
	Part of the problem with conveying the necessary public health messages about obesity is that even today, after several years of media coverage of the problem, the public are still generally ignorant of the health implications of being obese and why they are so serious. At the same time, social etiquette dictates that we never tell a person to their face that he or she is too fat, because nowadays that is considered offensive. As a result, in many cases, obesity is given every encouragement to continue unchecked. The CEMACH report was quite unequivocal in saying that women who are obese, and especially those who also have a pre-existing medical condition such as diabetes or epilepsy, should have proper counselling and support.
	In my view, the case for the hazards associated with obesity to form a key part of a new national service framework on the care of women before and during pregnancy is compelling. All relevant professionals should be made to appreciate the importance of advice and counselling on obesity in this context; and we should try to look at new ways of bringing home to women contemplating pregnancy that if they are obese or severely overweight they are playing Russian roulette with their lives and the lives of their future children. I hope the Minister will be able to tell us that these matters are receiving a serious degree of thought in his department and that the messages from this debate will be closely heeded.

Lord Darzi of Denham: My Lords, I am grateful to my noble friend Lady Rendell for raising this very important subject. Saving Mothers' Lives, the recent report of the Confidential Enquiry into Maternal and Child Health, raises some very serious issues about the impact of obesity on the health of pregnant women and their children, issues which we are determined to address. I am also grateful to noble Lords who have contributed so knowledgeably to today's debate. In the short time available to me I want to summarise the current understanding of the issues and set out what actions the Government are taking. I shall also seek to respond to as many points as I can.
	As noble Lords will be aware, Britain is in the grip of an obesity epidemic. Almost two-thirds of adults and a third of children are either overweight or obese. This has very significant health implications in terms of increased rates of cancer, coronary heart disease and diabetes, to name but a few examples. In addition, as eloquently described by the noble Lord, Lord Patel, obesity poses a risk for any form of intervention, whether that happens to be a delivery or even surgery.
	The CEMACH report, Saving Mothers' Lives, published in December 2007, looked in detail at the causes of maternal death for the period 2003-05. Overall, the number of women who died of obvious pregnancy-related causes has remained at seven per 100,000 maternities. The report highlighted that maternal obesity is emerging as a major and growing risk factor. Currently, around 20 per cent of all pregnant women have a body mass index of more than 30 and are therefore classified as obese. However, more than half of the mothers who died in the UK between 2003 and 2005, the period covered by this report, were overweight or obese, with 27 per cent of the mothers recorded as obese and more than 15 per cent as morbidly obese.
	The report's findings reinforces research studies which have produced overwhelming evidence that obesity in pregnancy contributes to increased morbidity and mortality for both the mother and the baby, as eloquently described by the noble Earl, Lord Howe. The evidence is clear on adverse outcomes not just for the mother but also for the baby. For example, CEMACH's 2005 report into perinatal mortality found that approximately 30 per cent of mothers who had a stillbirth or a neonatal death were also obese.
	How, then, do we tackle these growing problems? Maternity services are already responding by developing local protocols and guidelines. There are a number of national initiatives under way and some further lessons from the research evidence which I would like to highlight. I will also highlight the further work that we will do with experts outside the department to help us collectively address these issues.
	Many noble Lords in this debate raised the issue of prevention.Prevention is the best way to tackle this and we should be encouraging weight loss before pregnancy as much as possible as part of our overall strategy to tackle obesity. As Saving Mothers' Lives says, it is vital that we lose no opportunity to explain clearly but sensitively to women of childbearing age who are overweight or obese about the benefits of achieving a good body weight and adopting a healthy lifestyle before conception.
	There is also a clinical consensus that women with a BMI of over 30 should be cared for by a multidisciplinary maternity team so that their individual needs and risks can be managed. This is the safest form of care for them and their baby. In the case of very obese women, as for any other patient, this will include risk analysis decisions about the facilities and resources required to support the birth. To do this effectively, services need to ensure that all pregnant women, and particularly women in relatively high-risk groups including obese women, have access to maternity care early in their pregnancy so that they receive the right advice and get access to the right services from the outset. This is the cornerstone of our maternity policy as set out in Maternity Matters. We will be working with primary care trusts to increase the percentage of women who access services for a full assessment of their needs, risks and choices by the twelfth completed week of pregnancy.
	In 2009, the National Institute for Clinical Excellence will be publishing a tool kit to enable each pregnant woman to have her own risks and needs identified so that she receives the best possible help and support during her pregnancy from the most appropriate professionals. Local protocols have also been developed covering, for example, appropriate scan and screening to enable referral to specialists to manage risks such as diabetes, hypertension and thromboembolism; assessment to identify appropriate facilities and equipment for labour and delivery, including increased diagnostics such as ultrasound, suitable surgical instruments, listening devices and beds; and assessment and management of any complications following the birth.
	Once their individualised care plans have been established, these women will be closely monitored and supported by their midwife, obstetrician and other members of the maternity team, including nutritionists. Women for whom obesity may pose a significant problem at birth will require an antenatal assessment to discuss the least risky method of birth for both themselves and their babies, and an antenatal anaesthetic assessment to discuss analgesia and anaesthesia should caesarean section be necessary.
	Although Maternity Matters gives us the policy framework, there is much more to do to address the problems highlighted in the Saving mothers' lives report. We are working with outside experts in two areas: improved advice on prevention of excessive weight gain in pregnancy and the scope to develop evidence-based UK guidelines on the optimum management of obese women in pregnancy.
	First, on prevention, we have asked the National Institute for Health and Clinical Excellence to develop guidance on prevention of excessive weight gain in pregnancy. This will add to a suite of guidance on pregnancy and childbirth which already includes guidance for improving nutrition for pregnant and breastfeeding mothers. We will also be looking to improve information available to clinicians on the care for this group. We have asked the Royal College of Obstetricians and Gynaecologists to consider developing a national clinical guideline for the management of obese pregnant women, both using the numerous local guidelines already in existence and in light of the results of the current CEMACH and National Perinatal Epidemiology Unit research programmes. The need for such a guideline was a key recommendation in the Saving mothers' lives report. We will work closely with the royal colleges on this.
	On some of the specific issues raised in the debate, I am grateful for the acknowledgment by the noble Baroness, Lady Tonge, of the polyclinics. I should probably restrain myself from talking about that subject today. However, I could not agree more that we wish to see an NHS in the future not for sickness but for well-being.
	Children and their parents have access to children's centres, supported by two departments: the Department of Health and the DCSF. These centres bring together services for education and health, and have an important role to play in preventive care. They also provide opportunities for mothers to meet and gain experience and support from these different resources.
	The noble Earl, Lord Howe, mentioned the current guidelines for IVF and the BMI rates. Most PCTs currently have a policy that, before receiving fertility treatment, women should aim to have a BMI of 19 to 30. The NICE fertility guidelines on the assessment and treatment for people with fertility problems say that women with a BMI of more than 29 should be informed that they take longer to conceive and that losing weight is likely to increase the likelihood of conception. They also refer to men; men with a BMI of more than 29 are likely to have reduced fertility.
	The noble Baroness, Lady Finlay, raised the important point of the role of the Health and Social Care Bill. The Bill includes the provision to inform parents of their child's weight, height and BMI when measured at school at the entry age of 5 and at age 10 to 11. This will alert parents to their child's weight and, it is hoped, promote them to take action.
	The noble Baronesses, Lady Finlay and Lady Tonge, asked what the Government are doing on breastfeeding. Our main challenge is to focus on interventions that will promote breastfeeding. We know that health professionals such as midwives and health visitors can play a vital role in encouraging more mothers to initiate and sustain breastfeeding beyond the early weeks.
	The noble Lord, Lord Patel, mentioned the Government recruiting an additional 4,000 midwives. Many of these midwives will be new to the profession but there are also former midwives whose expertise could be brought back into the NHS. The department, along with the Royal College of Midwives, will therefore launch a return-to-practice campaign this summer, with incentives including free training support with childcare and travel costs.
	I am running short of time so I will conclude, but I will be more than happy to address some of the other issues raised today. The Government take very seriously the need to address this country's obesity epidemic and the health implication which stems from it. I hope I have demonstrated that we take equally seriously the need to support high-risk groups, such as obese women who are, or may become, pregnant, recognising the health impacts for them and their babies, so ably described by noble Lords. I thank the noble Baroness once again for bringing this subject forward and also all the noble Lords who have contributed to today's important debate.

Baroness Thornton: My Lords, I beg to move that the House do now adjourn for two minutes.

Moved accordingly, and, on Question, Motion agreed to.
	[The Sitting was suspended from 8.40 to 8.42 pm.]

European Union (Amendment) Bill

Further consideration of amendments on Report resumed.
	[Amendments Nos. 28A and 28B not moved.]

Lord Hunt of Wirral: moved Amendment No. 28C:
	After Clause 6, insert the following new Clause—
	"Parliamentary scrutiny of the European Public Prosecutor
	(1) A Minister of the Crown may not vote in favour of, or otherwise support, a decision under the following provisions unless Parliamentary approval has been given in accordance with this section—
	(a) Article 86(1) of the Treaty on the Functioning of the European Union permitting the creation of a European Public Prosecutor,(b) Article 86(4) of the Treaty on the Functioning of the European Union permitting the extension of the powers of the European Public Prosecutor.
	(2) Parliamentary approval is given if—
	(a) in each House of Parliament a Minister of the Crown moves a motion that the House approves Her Majesty's Government's intention to vote in favour of, or otherwise support, the decision, and(b) each House agrees to the motion without amendment.
	(3) In this section "the Treaty on the Functioning of the European Union" means the Treaty establishing (what was then called) the European Economic Community, signed at Rome on 25th March 1957 (as amended and renamed by the Treaty of Lisbon)."

Lord Hunt of Wirral: My Lords, proposals for a European Public Prosecutor are not new but, as our European Union Committee stated in its report at paragraph 6.209, this is the first time the structure for implementing this idea has been included in the treaties, and the inclusion of the relevant article makes it more likely that this post will one day be created. We have raised this question from time to time because it causes concern.
	This amendment seeks to ensure that Parliament has the opportunity to scrutinise and vote on any proposal to set up the role of a European Public Prosecutor, or to extend his or her role. As with so many other amendments that we on these Benches have tabled, this will not in any way tie the hands of the noble Baroness the Leader of the House or force her or any of her colleagues to take action that they have not already indicated they wish to take. Along with most of the provisions that we have attempted to scrutinise, these two were utterly opposed by the Government originally. Some Labour Back-Benchers in the other place expressed their opposition to them and others in the Liberal Democrat and Labour Parties have admitted that these provisions might be a cause for concern.
	I am fully aware that there is a lock on these provisions. It would be necessary for the United Kingdom to opt in to this area before there was any possibility of the public prosecutor having the right to operate here. I am also aware that Ministers say that it is very unlikely that we will ever opt in. Unfortunately, we have come to accept that we can take little comfort from such ministerial assurances. I hope I am right in saying that there can be very few remaining in this Chamber who do not accept that a parliamentary vote is a necessary and valuable safeguard to protect against any change in policy on the part of the Government or, indeed, any ministerial U-turn on a subject as important as this. Nor is it just a matter of holding the Government to their stated policy: it is also a matter of protecting the United Kingdom against the negotiating triumph that the Secretary of State claimed in the other place when 38 out of 40 amendments that the Government proposed to the treaty were not accepted.
	Many of us have from time to time been troubled by the idea of the public prosecutor. These provisions are therefore worrying and their implementation will always be controversial. I very much hope that I shall be able to persuade the Minister that she ought to give an undertaking to this House that a measure such as this will never be implemented without the profound and meaningful involvement of Parliament. If she is so persuaded, this amendment would be a fast track to bring about that objective. I beg to move.

Lord Goodhart: My Lords, this is, frankly, a rather strange little amendment. It assumes that we will have already opted in to Article 86 under the protocol on the position of the United Kingdom and Ireland. That is because if we had not opted in by that stage, the Minister would, of necessity, have no part in the adoption of the regulations under Article 86. Frankly, it is very unlikely that any Government of the United Kingdom will wish to opt in to Article 86 in the foreseeable future. Setting up an office of the European Public Prosecutor in the United Kingdom is in my view, and I think that of a large majority of Members of your Lordships' House, neither necessary nor desirable. The European Public Prosecutor may well have a role to play in some other countries, as suggested by the witness mentioned in chapter six, paragraph 200, of the EU Committee's report. The simplest way of excluding the European Public Prosecutor from operating in the United Kingdom is simply not to opt in.
	If the Government wanted to opt in, the best way to provide for parliamentary procedure would have been to require parliamentary consent to the opt-in rather than at the point at which the United Kingdom has to vote on the proposal. But your Lordships' House has decided today not to require a parliamentary procedure in the Bill for opt-ins under Article 3 of the protocol, which covers opt-ins under Article 86 of the Treaty on the Functioning of the European Union
	For the reasons given by several speakers in the debate on Amendment No. 25, which I will not repeat, I think that that decision was correct. I therefore see no justification for treating the opt-in to the European Public Prosecutor as requiring any different treatment by imposing a parliamentary process at a subsequent stage.

Baroness Ashton of Upholland: My Lords, I am grateful to the noble Lord, Lord Goodhart, for setting out so clearly what was agreed earlier today, which applies to this, too. I agree with everything that he said. We have secured legally watertight safeguards in the treaty against any move towards a European public prosecutor or subsequently, and just as important, towards extending that prosecutor's role. It is what we would call a double lock. We do not see any need to do anything different from what we have already achieved.
	Lock number one, as the noble Lord, Lord Goodhart, said, is that we apply the UK opt-in. That means that the procedure that I outlined earlier today for your Lordships' House and another place would apply. The proposal would go to the committee and it would be part of the discussions that noble Lords would have in the annual report if we were aware that it was coming. There would be discussions in the committee, which could refer the matter to your Lordships and a vote could be taken, of which the Government would take note.
	I agree with the noble Lord, Lord Goodhart, that it would be extremely unlikely that we would choose to opt in to such a proposal in any event. However, if we did opt in, if the matter went through that scrutiny-plus procedure, as noble Lords have referred to it, and if we did end up finding ourselves discussing the possibility of establishing the European public prosecutor, we would still have unanimity, which is retained for any decision to establish a prosecutor and to extend the powers of such a prosecutor. So there is a double lock. The opt-in procedure applies, Parliament will let its views be known and the Government will put forward their proposals. The Government would then, if they so chose, which is highly unlikely, have the discussions and could determine by unanimity if they did not wish to participate. That would be the end of that.
	As noble Lords will know, under enhanced co-operation, if at least nine other states wish to proceed, they can. That does not affect the United Kingdom in any way, shape or form. It is quite right that the Lisbon treaty gives member states the flexibility to proceed if they choose, but, even if they did, the European public prosecutor would have no role in the UK. On that basis, I hope that the noble Lord will feel that there are enough safeguards clearly written into the treaty and the procedure to feel comfortable to withdraw his amendment without fear that this is something that would happen by the back door or in any way that he would not be aware of.

Lord Hunt of Wirral: My Lords, this is very much a front-door amendment because it seeks to introduce a test and a third lock, to use the Minister's terminology, of parliamentary approval. I do not want to go back over previous debates, although they have been referred to by the noble Lord, Lord Goodhart, and by the Minister, but I really ought to correct what the noble Baroness said about noble Lords describing the procedure that she outlined earlier as "scrutiny-plus". I thought that the most effective description of that procedure came from my noble friend Lord Jopling, who pointed out that it is very much a second-tier, or second-class, system. What can be better than requiring parliamentary approval?
	The Minister seeks to persuade me that this is never going to happen. She is saying, "Please don't concern yourself with seeking to entrench parliamentary approval first, because it will never be required. This will never trouble Parliament, because it is not something that will ever happen". I recall that, when the noble Lord, Lord Goodhart, and I sat on a sub-committee of the European Union Committee, we used to hear evidence from time to time about the efficiency that would be introduced by some form of cross-border justice system. Both he and I had a healthy scepticism of any such move in that direction. I suppose what I am seeking to do here is to say that there are a number of other situations where parliamentary approval would be required. After all, all this amendment does is to say that—

Baroness Ludford: My Lords, my apologies for interrupting the noble Lord, Lord Hunt. I do not wish to second-guess the Minister, but I do not think that she said that a proposal for the European public prosecutor would never happen and would never come forward. She was talking about the safeguards if it ever did. Does the noble Lord accept that the fact that Eurojust is being strengthened under Article 5 of the treaty shows that there is a strong need to enhance the capacity for cross-border investigations and prosecutions in the EU? The fact that Eurojust is being strengthened should weaken the argument for a European public prosecutor. If we can get Eurojust to work as an EU institution—the legislation is going through now to make it an EU body as opposed to just an intergovernmental one—that should, if not obviate, at least weaken the argument for a European public prosecutor. Eurojust has been led by a British official for some years. I am not saying that no one will ever put forward a proposal for an EPP, but that is less likely with Eurojust being strengthened, enhanced and made more effective.

Lord Hunt of Wirral: My Lords, I find myself very much in agreement with the noble Baroness, Lady Ludford. Eurojust's mission is to support and strengthen co-ordination and co-operation between national investigating and prosecuting authorities in relation to serious crime affecting two or more member states, or requiring prosecution on common bases—on the basis of operations conducted and information supplied by the member states' authorities and Europol. Of course, the European Parliament and the Council are empowered to adopt regulations to determine Eurojust's structure, operation, field of action and tasks. Those tasks include the co-ordination of such investigations and prosecutions and—the noble Baroness is absolutely right—strengthening judicial co-operation.
	There are still moves to establish this office of European public prosecutor, of which we are all aware. The Minister may be right in saying that they will never come to fruition with regard to the United Kingdom and that there are double locks. However, I go back to our earlier debates and say that there is nothing quite as good as requiring parliamentary approval. That is why I seek to test the opinion of the House.

On Question, Whether the said amendment (No. 28C) shall be agreed to?
	Their Lordships divided: Contents, 63; Not-Contents, 132.

Resolved in the negative, and amendment disagreed to accordingly.

Lord Howell of Guildford: moved Amendment No. 28D:
	After Clause 6, insert the following new Clause—
	"Parliamentary scrutiny of the merging of the offices of the Presidents
	(1) A Minister of the Crown may not vote in favour of, or otherwise support, a decision under any article of the Treaty on European Union or the Treaty on the Functioning of the European Union that relates to, or in so far as it relates to or could be applied in relation to, the merging of the office of the President of the Council with the office of the President of the Commission unless Parliamentary approval has been given in accordance with this section—
	(2) Parliamentary approval is given if—
	(a) in each House of Parliament a Minister of the Crown moves a motion that the House approves Her Majesty's Government's intention to vote in favour of, or otherwise support, the decision, and(b) each House agrees to the motion without amendment.
	(3) In this section—
	(a) "the Treaty on the European Union" means the Treaty establishing the European Union, signed at Lisbon on 7th February 1992 (as amended by the Treaty of Lisbon), and(b) "the Treaty on the Functioning of the European Union" means the Treaty establishing (what was then called) the European Economic Community, signed at Rome on 25th March 1957 (as amended and renamed by the Treaty of Lisbon)."

Lord Howell of Guildford: My Lords, this subject was to some extent covered in Committee in a rather dismissive debate. It is the question of the new presidency roles that are being created, a matter about which the noble Lord, Lord Wedderburn, who is not in his place because he has not been very well, warned us to be very careful when it came to agreeing to Bills creating new presidential posts, particularly those where the job specification remains gloriously uncompleted. The debate in Committee confirmed that it is yet to be decided exactly how these roles will be fulfilled and how they will work. There are some sketchy propositions in the treaty, but that is all.
	In Committee it was asserted that the unity of the two posts was unthinkable, that no one was advocating it, that it could not happen under the treaty and so on. It is not quite like that, and we need some more reassurance because it would be sad if—looking back on this time, should some of the predictions that there will be a merger of the two come to fruition—we in this Parliament were criticised for failing to be on our guard. The much quoted Valéry Giscard d'Estaing said:
	"We will probably have to have at least two executives in the beginning, but the process of reform will not be complete in 12 months",
	implying that it would be completed. The Italian Prime Minister said:
	"We should ask ourselves whether it makes sense to maintain two presidents of the executive, one for the Council and the other for the Commission, or whether it would be better to have a single office, presiding over both institutions".
	The idea is around, and it is not true to say that there is no question of it. We need to be reassured on it.
	This amendment simply urges that we should have one more addition to the famous list of passerelle-guarding provisions in Clause 6. We shall come to a good many more of the passerelle issues that somehow got left out of Clause 6. We tried one earlier this evening and, as the noble Lord, Lord Goodhart, reminded us, this House voted the other way, so those provisions, which were more strictly defined as opt-in provisions rather than as passerelles, were excluded. However, this would be a good one to have in the Bill. It is puzzling to know who decided which of the many provisions and passerelles in earlier treaties that are included in the Lisbon treaty should be listed in Clause 6 and which should be left out. That is a puzzling issue, and I shall share some thoughts about that matter with your Lordships in the next amendment. In the mean time, this amendment would be useful and reassuring, and when it eventually happens, if it does, or when the pressure comes up for it, it would prevent future commentators turning round and criticising us for not being on our guard and at least seeking some reassurance that Parliament will be fully involved when and if it occurs. I beg to move.

Lord Anderson of Swansea: My Lords, the good book talks about making bricks without straw. I remain wholly puzzled about the proposition the noble Lord has put forward. I well understand the need for probing—it is the job of any opposition, and the Opposition are doing it thoroughly—where there are uncertainties, lacunae, matters to be uncovered or potential dangers foreseen, but this is not one of those matters. In no way can the treaty be clearer about the proposition. The treaty was quoted in Committee. The president of the Council cannot also be President of the European Commission. The treaty makes clear that:
	"Members of the Commission may not during their term of office engage in any other occupation",
	and that they,
	"shall neither seek nor take instructions from any Government or from any other ... body".
	So there can be no uncertainty about the matter. It is crystal clear and I hope we can skate speedily over this non-issue.

Lord Hannay of Chiswick: My Lords, the last thing that anyone will criticise Her Majesty's Opposition for is taking insufficient account of every nightmare, frisson and other possibility that is around, because the list of amendments that we have discussed runs through the whole gamut and beyond. The noble Lord, Lord Howell, can feel confident that no one will ever accuse him of that. However, as the noble Lord, Lord Anderson, said, the treaty itself is extremely explicit so far as the responsibilities of the President of the Commission are concerned, in a way that seriously and totally precludes the sort of nightmare scenario suggested in this amendment. I would have thought—the noble Baroness the Leader of the House can no doubt confirm this—that in order for this to come about, you would have to change the treaty. In which case you do not need this amendment, because if you change the treaty you will have to have the full ratification procedure as laid down, and as we are now painfully but enjoyably undergoing in this House.
	If the noble Lord receives sufficient satisfaction from the Leader of the House I hope that he will feel able to withdraw the amendment.

Lord Wallace of Saltaire: My Lords, the justification for moving the amendment is not that this is likely but that "the idea is around". A great many ideas about European integration are around. During the dinner hour I ran across the noble Lord, Lord Pearson of Rannoch, on his way home and I upbraided him for going home. I was imagining that if he had stayed here he might have wanted to raise the question of whether it was possible to envisage a European federation eventually having a European emperor. After all, there are some candidates for this—a Hohenzollern or two, a Bonaparte and a Habsburg. Some of us have met Otto von Habsburg, who was a Member of the European Parliament for the Christian Social Union in Bavaria. Some noble Lords may also remember a wonderful story. He was asked one evening whether he was going to watch the Austria-Hungary football match. He said, "Yes, perhaps I will. Who are we playing against?".
	The fact that these ideas are around does not necessarily mean that we should be taking them seriously. In the Daily Mail this morning, Melanie Phillips tells us that the European Union is incompatible with democracy. The idea is around. Should we take it seriously? There are some on the Conservative Benches who do take that seriously, but I trust that the noble Lord, Lord Howell, does not.

Baroness Ashton of Upholland: My Lords, I shall do my best to be clear with the noble Lord, Lord Howell, and not to be in any way dismissive. What I interpreted from our previous discussions, as noble Lords have just done, is that there is very little to say on the matter, because the treaty is so clear. It is therefore difficult to extrapolate in great detail. Let me say that noble Lords who have just spoken are right that the treaty is clear. Article 245 of the treaty on the functioning of the European Union states:
	"members of the Commission may not, during their term of office, engage in any other occupation",
	as my noble friend Lord Anderson said. Article 17(3) of the treaty on European Union says that members of the Commission, which includes the president,
	"shall neither seek nor take instructions from any Government or other institution, body, office or entity".
	If we have three positions and two of them are forbidden to hold any other role, then—unless my logic has gone completely astray—you cannot double hat any one of them. There are not enough of them to achieve that.
	The first proposition is that the treaty does not allow it: it is not a question of interpretation and there is no ambiguity; it is absolute clarity. Equally under the treaty there is no provision that we could do this by any passerelle provision: it is not there and does not exist. Indeed, as the noble Lord, Lord Wallace, has said, the only way that the two posts could be merged would be by a treaty change and that could happen only via an Act of Parliament, because this would be an EU amending treaty and it would have to be approved by an Act of Parliament.
	Noble Lords opposite have said that in their view, the most positive way to ensure that nothing that they are fearful of happens is by Act of Parliament; here it is. I hope that the noble Lord will withdraw his amendment.

Lord Howell of Guildford: My Lords, I thank the noble Baroness. I say to the noble Lord, Lord Wallace, that the old jokes are definitely the best and I look forward to more old jokes from that direction.
	I am a bit reassured by the noble Baroness that, although this raises a much broader question, in the treaty and the Bill as they are presented to us, the ideas that I have been taken to task for saying are around—and they certainly are; I have many more quotations that I could bring to your Lordships' attention, but I shall not—are unlikely to happen, or could not happen, without changes. I am interested that she thinks that there is no loophole through the passerelle system, but that it would require a new treaty or a major amendment to the treaty and an Act of Parliament. That is the kind of language that we like on this side of the debate. One of our worries—this is almost bringing me on to the next amendment, so I shall say only a few words—is that this is the very open-ended treaty. It is a treaty made of that substance—amoebic jelly, or something—that keeps expanding in horror films. One just does not know what kind of powers can be introduced and at what point.
	In a moment, I will come in detail not only to the passerelle loophole, but to others and to the question repeatedly asked from this side of whether our constitutional system, our Parliament, has enough control over the movement and redistribution of powers in the European Union. Some of them may be unfavourable to us; some of them may be helpful. That is the background against which one still asks whether we can have the total reassurance that we require. The noble Baroness is in a reassuring mode, and I am reassured by her, at least for the moment, so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Howell of Guildford: moved Amendment No. 28E:
	After Clause 6, insert the following new Clause—
	"Parliamentary scrutiny of measures necessary to attain Treaty objectives
	(1) A Minister of the Crown may not vote in favour of, or otherwise support, a decision under Article 352 of the Treaty on the Functioning of the European Union that permits the adoption of a measure necessary to attain one of the objectives set out in the European Union Treaties, in cases where those Treaties have not provided the necessary powers, unless Parliamentary approval has been given in accordance with this section.
	(2) Parliamentary approval is given if—
	(a) in each House of Parliament a Minister of the Crown moves a motion that the House approves Her Majesty's Government's intention to vote in favour of, or otherwise support, the decision, and(b) each House agrees to the motion without amendment.
	(3) In this section "the Treaty on the Functioning of the European Union" means the Treaty establishing (what was then called) the European Economic Community, signed at Rome on 25th March 1957 (as amended and renamed by the Treaty of Lisbon)."

Lord Howell of Guildford: My Lords, we now come to a more elaborate and important amendment, which concerns the matters about which I have just been speaking in my comments on the previous, much smaller amendment. I want to bring into the Clause 6 world the passerelle provisions and the accountability provisions—measures to ensure parliamentary approval of provision for the EU to adopt measures to obtain treaty objectives.
	That sounds like yet another debate on passerelles but of course it goes much further than that. We now have another article—I hesitate to state the number because in my copy of the treaty it is Article 308, but I believe that it has somehow become Article 352. That has received curiously little attention, but it is an article that we should discuss and consider carefully if we are to attempt to do our duty in examining the whole Bill properly. The article, which in my version of the treaty is Article 308, but which I think has become Article 352, states:
	"If action by the Union should prove necessary, within the framework of the policies defined by the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament"—
	a body about which we have heard an awful lot recently—
	"shall adopt the appropriate measures. Where the measures in question are adopted by the Council in accordance with a special legislative procedure, it shall also act unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament".
	Could we have some real illumination of the real implications of that, what it might mean in the future and what we are signing up to? It is not very clear, it needs to be clear and we need to have the right clarification on the record.
	In addition, I have some comments on the objectives of the treaty and the powers that can be mobilised to achieve them. We had a very interesting debate this afternoon. My noble friend Lord Hunt made a brilliant speech—alas it did not carry the day in votes, but it was brilliant all the same—on the proposals in the amendment tabled by the noble Lord, Lord Goodlad. The debate was really all about whether opting in should have the same parliamentary brakes on it and the same statutory controls in the Bill as the other passerelles in Clause 6. The House decided that it should not.
	The excellent report of the noble Lord, Lord Goodlad, also reminded us of what might be called the hidden worry about the treaty: the whole range of other passerelles that it has inherited from past treaties and that are not listed in Clause 6 and are not in the Bill. There is a whole string of them. After the debate, I learnt by looking at a document that had been deposited on my desk that the Government had replied to the Bill and the treaty of Lisbon implications for the UK constitution. I refer to the report of the Constitution Committee, which unfortunately had not reached me. Ministers may say that that is the incompetence of my not-very-large organisation, that it should have reached me and that it was tabled and reached the Printed Paper Office, but I felt it rather sad that it did not reach me until this afternoon after the debate. I may be wrong. Perhaps the noble Baroness referred to it in the debate. I am not sure whether she did. Perhaps she could tell us when she comments in a moment. Here it is, and it is full of information that I wish I had had—I also wish my noble friend Lord Hunt had had it because he did not have it either—for this afternoon.
	I shall concentrate in particular on the information that was prompted by the comments in the report by the committee of the noble Lord, Lord Goodlad, which suggests that past issues under the parallel procedures should also be taken into account. Indeed, the report says:
	"We call on the Government to provide a list enumerating all these provisions in order to allow Parliament to consider during the passage of the Bill whether each one should or should not be subject to parliamentary control under clause 6".
	That is quite an important statement, which did not feature very much this afternoon. If I had known the nature of the Government's reply to it, I would have certainly urged others to raise it or raised it myself. It tells us that there is indeed a big and powerful list of issues that allow treaty changes without resort to any kind of intergovernmental conference.
	There is the provision in the first paragraph, which allows the European Council by unanimity—that is quite fair; I am not making QMV points at this stage—to amend the number of commissions. That is an old one, but it is there still. There is the provision that allows the Council to strengthen or to add to citizens' rights. That is an important provision that comes from a previous treaty—the Maastricht treaty—and is there still. One is always open to the gibe, "Why didn't you think of more accountability on that at the time of the Maastricht treaty?". "I do not know, I cannot remember", is my answer. Now that we are piling up these provisions, which allow the treaty to be elasticised and expanded, we are starting to become anxious about it, and rightly so.
	There is the provision that allows the Council to confer jurisdiction on the European Court of Justice in disputes relating to legal acts creating EU intellectual property rights. We did not hear much about that this afternoon; yet here is an important provision, again inherited I think from the treaty of Nice but one that could be used in the future and that allows an extension of the powers and involvement of the ECJ. Another provision allows the Council to add to the list of criminal offences defined at EU level and, again, every member state must agree, but there it is. A "member state" means a government in the European Parliament—not the national Parliaments, incidentally—so that one could be flicked through. There is a provision that allows the Council to add to matters for which directives can be made on criminal procedural law. Again, member states must agree in the European Parliament. Another provision is to extend the European public prosecutor's powers to include serious crime having a cross-border dimension; and so on. I quote:
	"Each of these passerelles is limited to specific and clearly demarcated policy changes".
	As I have emphasised, they do not provide a specific move from unanimity to QMV, although presumably under other parts of the passerelle machinery they could be moved from specific unanimity to QMV.
	So I have a little complaint. It is fair enough for the Government to confine their own information to the debate and everything else, but we are trying to improve this Bill. So far we have not had all that much success because zero amendments have been achieved, but even by our debate, if not by voting things through, we are trying to improve it. It would have been helpful for those of us who have the honour, the privilege and the duty to move these various amendments in order to fulfil our line-by-line examination and duty to get the right documents at the right time.
	I repeat that this document arrived on my desk after the debate on the committee's report this afternoon. I do not think that that is right. But that is probably background to the broader issue of the need to look very carefully at the ways in which the powers exist and can be expanded, developed, lengthened and strengthened for achieving the treaty's objectives, and how that can be done with or without proper parliamentary control. We prefer it to be with effective parliamentary control and not too much power for the Executive. Others have a different view. I understand it, but I think that it is wrong and out of date. In the mean time, I beg to move.

Lord Dykes: My Lords, following the remarks of the noble Lord, Lord Howell, one is bound to express some sympathy. It is always very awkward for any Members, particularly those who are proposing amendments, not to have the chance of seeing crucial documents at the right time. I do not seek to interfere or to explain the background because I am not aware of it. However, in contrast to that, throughout our proceedings in Committee and on Report I have found—I think that other noble Lords would echo this—that the Government have been very assiduous and efficient in making sure that Members are well informed in advance on all the modalities and matters to do with any amendments that are tabled and so on. So I repeat my feeling of surprise that that has apparently happened and I, too, look forward to hearing the explanation of Leader of the House in answer to the noble Lord, Lord Howell.
	I do not wish to embarrass the noble Lord, but I also have some sympathy with him on his initial remarks about Amendment No. 28E. As he said, this refers to Article 352 of the TFEU, which was originally the famous Article 308. Bearing in mind that on the previous amendment my noble friend Lord Wallace said that the noble Lord, Lord Pearson, had apparently gone home, I couple my surprise and sympathy for the noble Lord, Lord Howell, with shock because the noble Lord, Lord Pearson, used regularly to raise the famous Article 308 matters in legislative proposals and in parliamentary Questions. For him to miss this opportunity on such an important matter seems to be surprising.
	Noble Lords will remember that the famous old Article 308 gave those extra powers to the Union or the Community and the Council of Ministers to make decisions where there was nothing covered in other treaty articles and provisions. The flexibility clause, as it has been named colloquially, gives the Union institutions the ability to adopt measures to achieve one of the objectives set out in the treaties where the treaties themselves do not provide the necessary powers. This means the Council acting by unanimity in adopting the measures and there is, therefore, always the use by member states of the national veto if that is deemed to be necessary. One would expect that to be a very rare occurrence.
	The flexibility of the clause therefore is more to do with competence and implied powers of the Union rather than the flexibility of either the interpretation of the treaty articles or the flexibility of member states to opt in or opt out of the provisions. The noble Lord, Lord Howell, alluded to a number of changes made to the article. In particular, the phrase,
	"the objective of the measure is in relation to the internal market"
	has been removed. The original justification for Article 308 was to deal with those matters in the internal market provisions that were not going to be covered by other treaty articles. There was a good deal of United Kingdom sympathy for that, because of our deep affection for the single market and the creation of the internal trading market of the European Union. This contrasted with our objections about extending powers in other areas of the Community's endeavours in future legislation. The article has since been expanded to state that national parliaments will be informed of the proposals of any measure that will not lead to harmonisation of the laws of the member states. The article cannot serve as a basis for legislation in relation to CFSP.
	Sometimes there are misunderstandings in these matters. One can range over a number of issues that come up in respect of this article and other examples not related to this. I have—quite legitimately—come into possession of a copy of a recent ministerial letter to a noble Lord. I will not name the Cross-Bench Peer. I tried to find him this evening to ask if I could mention his name. I could not find him and therefore, for what I am sure are understandable reasons, I prefer not to name him. The ministerial reply is dated 29 May. It is from the Government and concerns the anxieties of the noble Lord, Lord X, about whether, if one burned the European Union flag, one could be prosecuted under UK law for stirring up racial hatred or animosity. The ministerial reply states:
	"I can confirm that, in itself, burning the European Union flag would not lead to prosecution under racial hatred legislation in the UK. Where the flag belonged to someone other than the individual who set fire to it, it might be possible for the individual to be prosecuted for criminal damage. In addition, if the individual's behaviour more generally was deemed to stir up hatred or public disorder, their actions might be investigated with a view to prosecution".
	It continues:
	"If a directive in this area were to be proposed under the Lisbon treaty, the UK opt-out would apply".
	Noble Lords getting into such phantasmagorical territory as the voluntary or compulsory burning of the EU flag in order to make a point against the European Union seems to us on these Benches utterly daft. What on earth are people anxious about in the rational development of the modern European Union of 27 countries' machinery to make the working of the Union effective? One must have that essential machinery: that is what the Lisbon treaty Bill is about.
	I find the anxieties about Article 352 also to be overstated by people thinking that it is an "open sesame" to any agreement on extending powers. After all, it has to be by unanimity—we need to keep reminding ourselves about that. Some noble Lords, because of their original views and antipathy towards the European Community and all its works, get carried away with a lot of nonsense on these occasions. We were reassured on 13 March by the famous Lisbon treaty impact assessment of the EU Select Committee, of which I have the honour to be a member. It stated:
	"Article 352(2) of the TFEU, which applies the yellow card procedure expressly to measures under Article 352, (the 'flexibility clause' ... ) does not add anything of substance. Proposals adopted on the basis of Article 308 are no different from other proposals and fall under the subsidiary monitoring procedures without any special article. ... The reformulation of Article 308 to exclude the reference to 'the operation of the common market' makes clear that, in future, new Article 352 can be applied to any area of the EU's activities—except CFSP".
	I think it is fair to say that the Committee did not sound worried about that. It seemed to be a common-sense addition, as the growth of the treaty has meant other activities must be covered. As the Lisbon treaty puts it beyond doubt that the Article 308 machinery does not allow the EU to expand or circumvent the limits set by the treaties—
	"Measures based on this Article may not entail harmonisation of Member States' laws or regulations in cases where the [treaties] exclude such harmonisation"—
	I am reassured, and I think that Members on these Benches are reassured, by these welcome declarations.
	The further clarification we have is that not only is CFSP excluded, which has reassured a number of noble Lords in recent debates, but that the consent of the European Parliament is also now required. Personally, I welcome that, but I accept the suggestion of the noble Lord, Lord Howell, that it needs to be explained more thoroughly by the Government. Finally, we have a veto. There is a famous obsession with vetoes, but in this case it might be justified depending on what matter needed to be vetoed in the future. In the mean time, we feel that it is not necessary for the amendment to be pressed tonight.

Lord Hannay of Chiswick: My Lords, the amendment relates to an article which is not even Article 308, which has been referred to so often, but to Article 235 of the treaty of Rome. It is something of a miracle that the authors of the treaty of Lisbon have managed to arrange the same three figures in a different order. I am sure that if the noble Lord, Lord Pearson, had been in his place he would have told us that it had some cabbalistic significance equal almost to 666 being the sign of the devil, but he is not here so we shall be spared that. However, it is Article 235 of the Rome treaty which noble Lords opposite ratified along with the rest of us when we joined the European Community, as it then was.
	Is it a passerelle? No, it is not. A passerelle is a provision that enables the Council to change something in the Lisbon treaty without going through the whole process of treaty change. This provision does not allow that. It allows the Council to do something which is not provided for in the Lisbon or any other treaty if, by unanimity, the Council so wishes to do it. That is not a passerelle, I am sorry to say, so it is wrong to call it that. It is a provision, I agree, that allows for some flexibility, and in the past it has been used—quite often, or in fact invariably—with the agreement of this country because it has been seen to be in our overall interest. Since it requires unanimity, I have no doubt that that is the touchstone that will be applied in the future.
	As to the past passerelles of which noble Lords have been reminded by a letter from the Leader of the House, I say merely that it is an admirable thing to have done. It is quite right to remind us that they exist, but they are not in any sense sinister. They are something to which successive British Governments have agreed over the years and fall, therefore, under the rubric of pactus sunt servanda, which now that the Mayor of London is favouring the use of Latin in schools, will perhaps come to be more regularly understood and less mocked than it has been in the past. It is a fairly important aspect of the way the European Union works. It is right that the Government have reminded noble Lords of the existence of these passerelles—they are passerelles that have been agreed in the past—and how they continue to exist, but I do not think there is anything sinister about them. I hope that, on reflection and in the light of assurances given by the Leader of the House, the noble Lord will feel it is possible not to proceed with the amendment.

Lord Blackwell: My Lords, this is one of the most significant provisions in the treaty and it is sad that having run out of time to discuss it in Committee, we are now considering it at this late hour on Report. The noble Lord, Lord Hannay, says that it is not a passerelle, but this is a measure which allows the EU, through the Council, to extend its competences. Under this clause, the EU can take powers to pursue its objectives where the treaties do not provide for them. As we know, the objectives are set out in very broad terms in Articles 2 and 3 of the treaty, and at the moment at the end of Article 3 it states:
	"The Union shall pursue its objectives by appropriate means commensurate with the competences which are conferred upon it in the treaties".
	So it is limited to the competences in these treaties.
	We have heard a lot about the fact that the competences of the EU are only those set out in these treaties. Lo and behold, we now have an article which says that if there is a competence that the EU needs to pursue those objectives but which is not set out in the treaties, we can decide to adopt that competence. I do not find much reassurance in the constraint that if the treaty says you cannot harmonise laws, then it cannot be used to harmonise laws. I am aware of only a small number of cases where the treaty specifically prohibits harmonisation of laws—some under the area of freedom, security and justice—but I do not think most competences that the EU might want to take on are covered by that restriction. Yes, it excludes defence and foreign affairs, for which we should be grateful, but that still allows huge scope for extension of competences to achieve these very broad objectives in Article 3 for any measures that the EU wants to take which are not currently set out in this treaty.
	It is true that Article 308 provided very similar powers and the noble Lord, Lord Hannay, is right that those went back to earlier treaties, but they were, as was described earlier, constrained in the wording of the earlier article by the need for the measures to be necessary for the operation of the Common Market or the internal market. That is a very different scope from a clause which removes that condition and allows any competence to be taken on board to meet any of these very broad objectives which, I remind your Lordships, include things such as achieving a highly competitive social market economy, social progress, technological advance, and solidarity between generations. There is no end of things that could be taken on board to meet those objectives under this clause.
	As we know from the inquiries made by the noble Lord, Lord Pearson, of various Ministers across the Dispatch Box, Article 308 has been used in the past to provide measures which went beyond the internal market because, although we are told that the European Court never exceeds what the treaty says, the law has been interpreted here in a very permissive way to allow Article 308 to be stretched beyond the original meaning. In that sense, this clause tries to legitimise the abuse that has been made of Article 308 in the past, but in doing so it not only legitimises that position but opens up huge opportunities for further development of competences under this treaty. To my mind, that would traditionally have needed a new treaty. Extending the competences of the European Union should not happen without a proper treaty. This article allows it to be done by unanimity, but by the Executive.
	The whole purpose of these amendments is to ensure that there is proper parliamentary scrutiny of things which otherwise would have required treaties. I am amazed, and would have brought this up in Committee if we had discussed it, that this is the one huge provision which is not included in the Bill under Clause 6, where the Government believe that parliamentary control of decisions is needed. Paragraphs (a) to (i) are listed but the biggest gateway to the adoption of new competences is not apparently seen as worthy of the same level of parliamentary scrutiny as the other decisions listed under Clause 6. I believe it should be. If the Government were to add it to the provisions in Clause 6, that would be a satisfactory measure. In the absence of that, I believe that this amendment is essential to protect proper parliamentary scrutiny of the treaty. If my noble friend is not satisfied tonight, I very much hope that he might consider bringing this back at Third Reading. I think it is far too important to pass at this late hour without proper debate.

Baroness Ludford: My Lords, I have a somewhat different view and interpretation of Article 352 from that of the noble Lord, Lord Blackwell. He said that it allows the EU to take any measure that it wants. I do not think that that is correct. I would even take issue with his description that it allows the EU to extend competences. It uses the words:
	"If action by the Union should prove necessary, within the framework of the policies defined by the Treaties, to attain one of the objectives set out in the Treaties".
	This has to fit within a policy in the treaties to obtain one of the objectives. I do not think, therefore, that you are extending competences if you invoke Article 352 and it is certainly does not apply to any measure that the EU might want to take.
	We have had a lot of talk this afternoon and this evening about double locks and triple locks. I think that there is a seven-part lock on this article. The first is the use of the word "necessary", as opposed to "useful" or "desirable". I am sure that there would be litigation over the term "necessary", if necessary. Then you have this criterion referring to action,
	"within the framework of the policies defined by the Treaties, to attain one of the objectives set out in the Treaties".
	That is the second lock. Then you have the need for unanimity, which means a veto, including by the UK or other member states. Then you have to obtain the consent of the European Parliament. Then there is the yellow and orange card procedure for national parliaments. I would say that, with the European Parliament role and the national parliamentary role, there is proper parliamentary scrutiny, as well as what would happen at Westminster under whatever procedures are agreed here. I do not accept that there is no proper parliamentary scrutiny. Then you have Article 3, which the noble Lord dismissed. I happen to think that it is quite important. It states strongly and clearly:
	"Measures based on this Article shall not entail harmonisation of Member States' laws or regulations in cases where the Treaties exclude such harmonisation".
	Finally, as has been said, this cannot be used to extend the CFSP provisions or, indeed, something do with Article 40—I think that it is to do with agriculture, but I am afraid that that is outside my pay grade. I just submit that there are considerable safeguards within Article 352. The noble Lord, Lord Blackwell, described it as meaning that you can just come along and say, "We want to do something else". That is a misrepresentation of Article 352.

Baroness Ashton of Upholland: My Lords, I am grateful to all noble Lords who have spoken. I begin by making clear what happened with the response to the Constitution Committee report, which was published last Wednesday. Under the usual procedures of the House it was sent to the clerk to the committee, with copies for all committee members. Copies were placed in the Printed Paper Office, where noble Lords have been able to find it since last Wednesday. It was sent to the Libraries of both Houses. I also asked that it should go to Members who had spoken in debate. I will have to check whether that happened, as I have not had a chance to go back to my office. Certainly, all the usual procedures of how we publish a document were followed. I referred to the response at least once earlier in today's debate. I am sorry that the noble Lord, Lord Howell, found it on his desk. I am not suggesting that he was implying that that was my fault, as it certainly was not. I have obeyed, as noble Lords would expect, every process. In fact, I have done everything that I can think of to inform noble Lords, including copying every letter to everybody. Every process has been adhered to extremely strictly. I hope that the noble Lord will accept that that was the case.
	While noble Lords were talking, I was just reminding myself of what Article 352 says. When we talk about it, it is important to consider it in the context of what the words actually mean. I am just going to read a little bit of what Article 352 says. It is the updated version of Article 308, which I know has been an issue that scrutiny committees in your Lordships' House and another place have raised before. Noble Lords referred to the noble Lord, Lord Pearson of Rannoch. He is not the only one, but he is certainly the most assiduous person in this. I am sorry that he is not here, but that is his choice, as indeed it was the choice of noble Lords opposite to debate this amendment as this time of night. We have a whole day left and, at the moment, only one amendment down. We could certainly have discussed this much earlier in the day if noble Lords had wished to, but the choice was not mine.
	The article says:
	"If action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures".
	There are quite important caveats built into that: unanimity; the proposal from the Commission and consent of the Parliament, which is new; and making sure that it is concerned with what is provided within the treaties and not beyond. Noble Lords will know that that has been important from a UK point of view in, for example, providing financial assistance to third countries, including Lebanon and Georgia, where we were concerned to ensure that there was macroeconomic stabilisation. So there is a value to this article—formerly Article 308, now Article 352—in helping us to address issues that could not have been foreseen but are absolutely within the treaty, and in ensuring that the safeguards are completely clear.
	As noble Lords have said, let us be clear as to what those are. I have described one as unanimity, which means that the UK—and any other member state—can say no. We have talked about the consent of the European Parliament, so the democratic institution in Europe will have the right to say yes or no. Of course, as the noble Baroness, Lady Ludford, mentioned, national Parliaments will be able to play what have become known as yellow or orange cards; they could be used in this context, to raise concerns with the Commission and for Parliaments to say that this is not a way forward that they find acceptable. The noble Lord, Lord Hannay, made it clear that it is not a passerelle. It does not change the treaty, because it can only be used to give effect to a treaty objective: something that has already been determined. I have outlined what the procedure would be.
	The Government's position is clear. We have listened with enormous care to the scrutiny committees. In our response to the Constitution Committee, we have also made it clear that every explanatory memorandum submitted to the committees for proposals with what was Article 308 as the sole legal basis has contained an explanation of the justification of the use of that article. We will continue in exactly the same vein under Article 352.
	There is a welcome clarification in what has been described under Article 352. The procedure that will be used and the consents that will be needed are clearer. As I have already indicated, we of course have a veto on it. I therefore hope that the noble Lord will feel able to withdraw his amendment.

Lord Howell of Guildford: My Lords, I am most grateful to the noble Baroness, and quite accept that if my postal systems are not all that marvellous and things come through slowly it is nothing to do with her; it is my fault. However, my noble friend Lord Hunt, who has been intimately involved in the handling of the Bill throughout, has still not received his copy either. Maybe, therefore, something more than just my own postal system is at fault. I am sure that she would be ready to check with her office as to what, exactly, happened in the case of myself and my noble friend. If I sometimes get a feeling that we are having to fight with wooden rifles and pitchforks against the government juggernaut, I will try to dismiss them and use the modern weaponry of debate and opposition.
	The noble Baroness has given some reassurances, but they do not meet the general unease that runs through many of our queries about the distribution of powers. Power is a reality; it empowers those who can use it, who need to use it with humility, respect and care. Wherever it is being tossed around, acquired, redistributed, taken or given, we must be on our guard. Our parliamentary system has not been too bad at that over its lifetime and through its evolution.
	I was not saying that this provision was a passerelle. The noble Lord, Lord Hannay, was quite right if he thought I was comparing it to a passerelle, but I was adding it to the general bundle of propositions and provisions in the treaty and the Bill which seem to open doors rather than close them. Far from supporting the Prime Minister's view that there will be no more change or institutional reorganisation in the European Union, they imply that there is going to be a lot more and that were are going to be watching and, I hope, debating and having some control and final parliamentary say over a whole series of movements of power upwards and maybe, as the noble Baroness was suggesting, downwards as well. That will be the day.
	We have not heard much about this recently but it used to be the dream of many modern reformers in the European Union that the acquis should be unravelled and revived, and that the acquis powers that have accumulated over two, three or four decades and belong to a different era should now be transferred back to the nation state. That would be the position of the real liberal moderniser in Europe today. About that we have heard nothing and certainly the treaty does nothing towards that end. It talks about subsidiarity. We hope that is going to work better than in the past but that is very different from what I am saying. We do not need in the modern age such a centralisation of powers and initiatives. We can live with more disparity. We heard the cries of the lawyers earlier that we had to have a harmony of legal authority in the ECJ and what chaos there would be without one supreme legal authority throughout the Union, obviously extending its powers now with the collapse of Pillar 3 into a single pillar. But wherever we can, and even against the instinct of the lawyers and other centralisers, we want to be looking the other way towards decentralisation and variety within the overall scope of the club that is the European Union which, contrary to constant speeches from over my right shoulder, we support and always have supported and believe is an immensely important part of the armoury and membership of this country in its pursuit of its international objectives.
	This debate is part of a broader scene which confirms that this Bill extends competences. The list is there. It extends the QMV areas to between 51 and 61—I forget the names. It extends the powers of the European Parliament, which badly needs to reform itself, if we read it aright. I would say, in coming to the end of our debates, it has been a bad day for parliaments and this Parliament and a good day for Executive power. I hope those who have done that task will reflect on what they have achieved. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bach: My Lords, I beg to move that further consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.
	House adjourned at 10.02 pm.